HF 3644

as introduced - 92nd Legislature (2021 - 2022) Posted on 02/21/2022 02:50pm

A bill for an act
relating to judiciary; establishing statutory procedure to assess competency of
defendant to stand trial; providing for contested hearings; establishing forensic
navigators; requiring forensic navigators to provide services to certain defendants;
establishing continuing supervision for certain defendants found incompetent to
stand trial; authorizing administration of neuroleptic medications; establishing
requirements to restore certain defendants to competence; establishing planning
and implementation committee; establishing certification program for competence
restoration programs; appropriating money; proposing coding for new law in
Minnesota Statutes, chapter 628.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [628.70] APPLICATION.
new text end

new text begin Notwithstanding rule 20.01 of the Rules of Criminal Procedure, sections 628.70 to 628.88
shall govern the proceedings when competence to proceed is at issue in any nonjuvenile
criminal proceeding.
new text end

Sec. 2.

new text begin [628.71] DEFINITIONS.
new text end

new text begin (a) As used in this chapter, the following terms have the meanings given.
new text end

new text begin (b) "Cognitive impairment" means any deficiency in the ability to think, perceive, reason,
or remember caused by injury, genetic condition, or brain abnormality.
new text end

new text begin (c) "Competence restoration program" means a structured program of clinical and
educational services that is certified by the Department of Human Services and designed
to restore the competence of a defendant found incompetent to stand trial.
new text end

new text begin (d) "Examiner" means a person who:
new text end

new text begin (1) is a licensed psychiatrist or a licensed psychologist with a doctoral degree in
psychology;
new text end

new text begin (2) is currently practicing in the field of psychology, psychiatry, or other profession
involving the diagnosis and treatment of mental illness or cognitive impairment; and
new text end

new text begin (3) has specific training in the diagnosis and assessment or treatment of the alleged
impairment.
new text end

new text begin (e) "Forensic navigator" means a neutral mental health professional appropriately certified
under section 628.76, subdivision 4, who is appointed by the court to provide the services
described in section 628.76 and serves as a coordinator between the court, defendant, and
the parties.
new text end

new text begin (f) "Jail-based program" means a competence restoration program that operates within
a correctional facility licensed by the commissioner of corrections under section 241.021
that provides a separate housing unit which, at a minimum, meets the capacity standards
governing jail facilities. A jail-based program may not be granted a variance to exceed its
operational bed capacity.
new text end

new text begin (g) "Mental illness" means an organic disorder of the brain or a substantial psychiatric
disorder of thought, mood, perception, orientation, or memory.
new text end

new text begin (h) "Secure treatment facility" means a state, county, or privately operated locked facility
with a competence restoration program that is licensed or operated by the Minnesota
Department of Human Services.
new text end

new text begin (i) "Suspend the criminal proceedings" means nothing can be heard or decided on the
merits of any criminal charge. The court retains jurisdiction in all other matters, including
but not limited to bail, conditions of release, probation conditions, no contact orders, and
appointment of counsel.
new text end

Sec. 3.

new text begin [628.72] COMPETENCE TO PARTICIPATE.
new text end

new text begin A defendant is incompetent and shall not plead, be tried, or be sentenced if due to mental
illness or cognitive impairment the defendant lacks the sufficient present ability to:
new text end

new text begin (1) rationally consult with counsel;
new text end

new text begin (2) understand the proceedings; or
new text end

new text begin (3) participate in the defense.
new text end

Sec. 4.

new text begin [628.73] COMPETENCE MOTION.
new text end

new text begin (a) If the prosecutor, defense counsel, or the court at any time doubts the defendant's
competence, the prosecutor or defense counsel shall make a motion challenging the
defendant's competence, or the court on its initiative shall raise the issue. The defendant's
consent is not required. The motion shall be supported by specific facts, but shall not include
communications between the defendant and defense counsel if disclosure would violate the
attorney-client privilege. By bringing the motion, the defendant does not waive the
attorney-client privilege.
new text end

new text begin (b) Upon the receipt of a motion, the court must make a finding that reason exists to
doubt the defendant's competence. The court shall then determine whether there is probable
cause for the charge. If probable cause exists, the court shall suspend the criminal proceedings
and order an examination of the defendant pursuant to section 628.74. If no probable cause
exists, the charges shall be dismissed.
new text end

new text begin (c) If the court determines that reason exists to doubt the defendant's competence, a
defendant must not be allowed to waive counsel until the court enters a finding that the
defendant is competent. If the defendant is not represented by counsel at the time the court
determines that competence may be at issue, the court shall appoint counsel for the
proceedings under sections 628.70 to 628.88.
new text end

new text begin (d) If the court determines that reason exists to believe that competence may be at issue,
the court may appoint a forensic navigator to provide forensic navigator services for the
defendant.
new text end

new text begin (e) If the defendant is out of custody, the court shall impose conditions of release pursuant
to rule 6.02 of the Rules of Criminal Procedure to be monitored by the entity or agency
assigned to conduct such supervision and report violations to the court. The entity tasked
with the pretrial supervision of the defendant is responsible for the supervision of the
defendant until ordered otherwise by the court.
new text end

Sec. 5.

new text begin [628.74] COMPETENCE EXAMINATION AND REPORT.
new text end

new text begin Subdivision 1. new text end

new text begin Competence examination. new text end

new text begin (a) The court shall appoint an examiner as
defined in this section to examine the defendant and report to the court on the defendant's
mental condition as outlined in subdivision 3. If the prosecutor or defense counsel has
retained a qualified examiner, the court, upon request, shall allow that examiner to observe
any examination under this section. While an examiner is appointed or retained to examine
a defendant, the examiner may obtain and review the report of any prior or subsequent
examination of the defendant.
new text end

new text begin (b) The court shall order the defendant to participate in any approved examination as
follows:
new text end

new text begin (1) if the defendant is in custody, the examination shall be completed where the defendant
is being held, or the court may order that the defendant be confined in an available secure
treatment facility for up to 30 days to complete the examination. The time for the examination
may be extended for good cause unless the defendant is in custody on a misdemeanor charge.
If the defendant is in custody on a misdemeanor charge, the defendant shall be released
within 24 hours after the examination or after 30 days, whichever is less; or
new text end

new text begin (2) if the defendant is not in custody, the court shall order the defendant to appear for
the purpose of any approved examination. The examination shall occur within 60 days of
the order for examination. If the defendant fails to appear at an examination, the court may
amend conditions of release. The time for the examination may be extended for good cause.
new text end

new text begin (c) If any examiner concludes that the defendant presents an imminent risk of harm to
self or others, or otherwise needs emergency intervention, the examiner shall promptly
notify the prosecutor, defense counsel, court, and any party responsible for the care and
custody of the defendant.
new text end

new text begin Subd. 2. new text end

new text begin Report of examination. new text end

new text begin (a) The court-appointed examiner's written report shall
be filed with the court and served on the prosecutor and defense counsel within 15 days of
the date of the examination. The deadline for filing the written report may be extended for
good cause.
new text end

new text begin (b) The report shall include:
new text end

new text begin (1) any diagnosis of the defendant's mental condition, and the factual basis for the
diagnosis and opinions, including the results of any testing conducted with the defendant;
and
new text end

new text begin (2) an opinion and supporting factual basis for that opinion as to:
new text end

new text begin (i) the defendant's competence to participate as described in section 628.72;
new text end

new text begin (ii) any treatment, care, or education required for the defendant to attain or maintain
competence and an explanation of appropriate treatment alternatives by order of preference,
including:
new text end

new text begin (A) whether the defendant can be treated on an outpatient basis;
new text end

new text begin (B) the reasons for rejecting outpatient treatment if an inpatient competence restoration
program is recommended;
new text end

new text begin (C) whether the defendant poses a likelihood of harm to self or others or otherwise poses
a risk to public safety; and
new text end

new text begin (D) the appropriate use of neuroleptics or other medications, if warranted, and if within
the competence of the examiner; and
new text end

new text begin (iii) the likelihood the defendant will ever attain competence to proceed.
new text end

new text begin (c) If the defendant appears for the examination but does not participate, the examiner
shall submit a report and render an opinion on competence based on all available information
and an opinion as to whether the unwillingness to participate resulted from the mental illness
or cognitive impairment.
new text end

new text begin (d) If the court examiner determines the defendant would benefit from services for
engagement in mental health treatment under section 253B.041 or any other referral to
social services, the court examiner may recommend referral of the defendant to services
where available.
new text end

new text begin Subd. 3. new text end

new text begin Additional examination. new text end

new text begin If either party intends to retain an independent
examiner, the party shall give notice to the court and opposing counsel within ten days of
receiving the court-appointed examiner's report. If an additional examiner is retained, that
examiner's report shall be filed within 30 days of the filing of the notice, unless extended
by the court for good cause.
new text end

Sec. 6.

new text begin [628.75] COMPETENCE DETERMINATION.
new text end

new text begin Subdivision 1. new text end

new text begin Request for hearing. new text end

new text begin (a) Either party may request a hearing on the
examiner's competence determination by filing objections to the competence report within
ten days after filing of the report. The hearing shall be held within 30 days of the request,
unless extended upon agreement of the parties or by the court for good cause.
new text end

new text begin (b) If an additional examiner is retained, the hearing shall be continued up to 14 days
after the filing of the additional examiner's report. The court may continue the hearing for
up to an additional 30 days for good cause or upon agreement of the parties.
new text end

new text begin Subd. 2. new text end

new text begin Contested competence hearing. new text end

new text begin (a) The court may admit all relevant and
reliable evidence. The court-appointed examiner is considered the court's witness and may
be called and questioned by the court or either party. The report of any court-appointed
examiner shall be admitted into evidence without further foundation.
new text end

new text begin (b) Defense counsel may testify, subject to the prosecutor's cross-examination, but shall
not violate the attorney-client privilege. Testifying does not automatically disqualify defense
counsel from continuing to represent the defendant. The court may inquire of defense counsel
regarding the attorney-client relationship and the defendant's ability to communicate with
counsel. The court shall not require counsel to divulge communications protected by the
attorney-client privilege, and the prosecutor cannot cross-examine defense counsel concerning
responses to the court's inquiry.
new text end

new text begin Subd. 3. new text end

new text begin Determination without hearing. new text end

new text begin If no party timely files an objection and the
court does not hold a competence hearing, the court shall determine the defendant's
competence on the basis of any report submitted by an approved examiner.
new text end

new text begin Subd. 4. new text end

new text begin Burden of proof and decision. new text end

new text begin The defendant is presumed not competent
unless the court finds by a preponderance of the evidence that the defendant is competent.
new text end

Sec. 7.

new text begin [628.76] COMPETENCE FINDINGS.
new text end

new text begin Subdivision 1. new text end

new text begin Timeline. new text end

new text begin The court shall enter a ruling on the issue of the defendant's
competence to stand trial within seven days after the examiner's report is submitted to the
court. If there is a contested hearing, the court shall enter a ruling within 14 days after the
conclusion of the hearing.
new text end

new text begin Subd. 2. new text end

new text begin Finding of competence. new text end

new text begin If the court finds the defendant competent, the court
shall enter a written order and the criminal proceeding shall resume.
new text end

new text begin Subd. 3. new text end

new text begin Finding of incompetence. new text end

new text begin If the court finds by a preponderance of the evidence
that the defendant is incompetent to proceed, the court shall enter a written order and the
matter shall proceed pursuant to section 628.78.
new text end

new text begin Subd. 4. new text end

new text begin Appointment of forensic navigator. new text end

new text begin Upon a finding of incompetence, the
court shall appoint a forensic navigator to provide forensic navigator services for the
defendant. The court shall order that the forensic navigator has access to data as authorized
under section 628.77, subdivision 5.
new text end

new text begin Subd. 5. new text end

new text begin Appeal. new text end

new text begin Any party may appeal a competence determination to the court of
appeals. The appeal is governed by rule 28 of the Rules of Criminal Procedure. A verbatim
record shall be made in all competence proceedings.
new text end

Sec. 8.

new text begin [628.77] FORENSIC NAVIGATOR.
new text end

new text begin Subdivision 1. new text end

new text begin Purpose. new text end

new text begin (a) A forensic navigator appointed to provide services to a
defendant shall assist the defendant in accessing services related to competence restoration
and competence maintenance. The forensic navigator must advise the defendant, prosecutor,
defense counsel, and court on the options available for restoring and maintaining competence
and for any other relevant services. The forensic navigator is accountable as an officer of
the court for faithful execution of the responsibilities outlined in this section.
new text end

new text begin (b) Forensic navigator services are terminated:
new text end

new text begin (1) 90 days after the filing of a court order discharging the forensic navigator unless the
court order provides a different date;
new text end

new text begin (2) 90 days after the defendant's charges are dismissed; or
new text end

new text begin (3) 90 days after the defendant is found competent pursuant to section 628.76 or 628.80.
new text end

new text begin Subd. 2. new text end

new text begin Duties. new text end

new text begin The duties of the forensic navigator include, but are not limited to the
following:
new text end

new text begin (1) collecting relevant information about the individual, including behavioral health
services and supports available to the individual that might support placement in outpatient
restoration;
new text end

new text begin (2) meeting with, interviewing, and observing the individual;
new text end

new text begin (3) presenting information to the court to assist the court in understanding the treatment
options available to the individual for competence restoration and to facilitate access to
services;
new text end

new text begin (4) when the individual is ordered to a secure treatment facility or jail-based program,
providing services to the individual, including but not limited to:
new text end

new text begin (i) reporting to the court concerning the individual's progress and compliance with
court-ordered conditions, which may include appearing at court hearings to provide
information to the court;
new text end

new text begin (ii) assisting with coordination of court dates and any other off-site appointments; and
new text end

new text begin (iii) planning for an eventual coordinated transition of the individual to an outpatient
restoration program or community behavioral system;
new text end

new text begin (5) when the individual is ordered to receive community outpatient restoration, providing
services to the individual, including but not limited to:
new text end

new text begin (i) assisting the individual with attending appointments and classes relating to outpatient
competency restoration;
new text end

new text begin (ii) coordinating access to housing for the individual;
new text end

new text begin (iii) meeting with the individual on a regular basis;
new text end

new text begin (iv) reporting to the court on the individual's progress and compliance with court-ordered
conditions of release, which may include appearing at court hearings to provide information
to the court;
new text end

new text begin (v) coordinating the individual's access to community case management services and
mental health services;
new text end

new text begin (vi) assisting the individual with obtaining prescribed medication and encouraging
adherence with prescribed medication;
new text end

new text begin (vii) planning for a coordinated transition of the individual to a case manager in a
community behavioral health system;
new text end

new text begin (viii) attempting to follow-up with the individual to ensure the transition to the
community-based case manager occurred; and
new text end

new text begin (ix) coordinating assistance with community services and programs to meet the specific
needs of individuals involved in the criminal justice system, including but not limited to
mental health treatment, substance use disorder treatment, insurance, medical and dental
care, medication, housing, financial, social, transportation, and opportunities for diversion;
new text end

new text begin (6) developing and administering bridge plans when necessary; and
new text end

new text begin (7) partnering and collaborating with county social services, community-based programs,
jails, and any other resource available to provide referrals to services.
new text end

new text begin Subd. 3. new text end

new text begin Bridge plans. new text end

new text begin (a) Upon receiving notice that forensic navigator services will
be terminated, the forensic navigator must prepare a bridge plan to assist the defendant in
attaining or maintaining stability and accessing any appropriate treatment or services in the
community. The forensic navigator shall prepare the bridge plan with the defendant. A copy
of the bridge plan must be submitted to the court. The bridge plan must include:
new text end

new text begin (1) a confirmed housing address the defendant will use upon release, including but not
limited to emergency shelters;
new text end

new text begin (2) the dates, times, locations, and contact information for any appointments made to
further coordinate support and assistance for the defendant in the community, including but
not limited to mental health and substance use disorder treatment, or a list of referrals to
services; and
new text end

new text begin (3) any other referrals, resources, or recommendations the forensic navigator deems
necessary.
new text end

new text begin (b) Data on individuals collected as part of a bridge plan by any person or entity subject
to the provisions of chapter 13 are private under section 13.46. Bridge plans, supporting
documents, and any data on individuals collected as part of a bridge plan by the judicial
branch are not accessible to the public.
new text end

new text begin Subd. 4. new text end

new text begin Certification. new text end

new text begin (a) By July 1, 2023, the judicial branch and the Department of
Human Services must establish a certification and continuing education program for forensic
navigators, including a process for renewing certification and a regularly updated list of
certified forensic navigators.
new text end

new text begin (b) The program must include a training and education curriculum to certify mental
health professionals as defined in section 245.462, subdivision 18; mental health practitioners
as defined in section 245.462, subdivision 17; case management service providers as defined
in section 245.462, subdivision 4; and peer specialists as defined in section 256B.0615,
including the following topics:
new text end

new text begin (1) the criminal justice system, courts, and legal processes;
new text end

new text begin (2) the competence restoration process in Minnesota and the not guilty by reason of
mental illness or cognitive impairment defense;
new text end

new text begin (3) the civil commitment process in Minnesota;
new text end

new text begin (4) housing options, supports, and assistance for people experiencing housing insecurity;
and
new text end

new text begin (5) implicit bias and cultural humility.
new text end

new text begin (c) The program must include training to deliver the competence restoration curriculum
certified by the judicial branch.
new text end

new text begin (d) The judicial branch and Department of Human Services may develop a certification
program for individuals who are not described in paragraph (b). The program shall include
those topics identified under paragraphs (b) and (c) and:
new text end

new text begin (1) the symptoms of mental illnesses, substance use disorders, and co-occurring disorders;
new text end

new text begin (2) the mental health system in Minnesota;
new text end

new text begin (3) the substance use disorder system in Minnesota;
new text end

new text begin (4) crisis intervention; and
new text end

new text begin (5) motivational interviewing.
new text end

new text begin Subd. 5. new text end

new text begin Information sharing. new text end

new text begin (a) Forensic navigators shall have access to not public
data, as defined in section 13.02, and medical records under sections 144.291 to 144.298,
that are maintained by facilities to the extent necessary to conduct their review. The chemical
dependency records shall be disclosed pursuant to Code of Federal Regulations, title 42,
part 2. Any further disclosure of this information is prohibited unless further disclosure is
expressly permitted by the written consent of the patient or as otherwise permitted by Code
of Federal Regulations, title 42, part 2.
new text end

new text begin (b) By presentation of the order issued pursuant to section 628.76, subdivision 2, whether
mailed, facsimile, or personally delivered, any agency, department, or health care provider
shall release all information and records, including medical, psychological, behavioral,
chemical dependency, social service, probation and correction, developmental disability,
employment, and educational to the forensic navigator or the forensic navigator's designee
for the purpose of review and compliance with this chapter.
new text end

Sec. 9.

new text begin [628.78] INCOMPETENT TO STAND TRIAL AND CONTINUING
SUPERVISION.
new text end

new text begin Subdivision 1. new text end

new text begin Procedures on finding of incompetence. new text end

new text begin (a) If the court finds the
defendant incompetent and suspends the criminal proceedings, the court shall determine
from any relevant information available whether the defendant poses a danger to public
safety. After making its determination, the court shall follow the procedures outlined in
subdivision 2 or 3 as required.
new text end

new text begin (b) The criminal court making the finding of incompetence has jurisdiction to order a
placement regardless of the defendant's county of residence or the county of financial
responsibility. All monetary and nonmonetary conditions of release shall continue in full
force and effect, including any no contact provisions, so long as the defendant remains
incompetent to stand trial. If the defendant is out of custody and no conditions of release
have previously been ordered, the court shall order conditions of release pursuant to rule
6.02 of the Rules of Criminal Procedure.
new text end

new text begin (c) Each district shall assign an entity or agency to conduct such supervision and report
violations to the court. The entity tasked with the pretrial supervision of the defendant is
responsible for the supervision of the defendant until ordered otherwise by the court.
new text end

new text begin (d) A court may order a defendant to make all future court appearances, attend an
identified competence restoration program, and appear for additional competence
examinations independent of any conditions of pretrial release. Such an order does not
prohibit similar requirements as a condition of pretrial release or probation.
new text end

new text begin (e) A defendant is eligible to participate in jail-based programming if the defendant has
been found incompetent and a court makes a finding that jail-based programming is the
least restrictive setting to meet the defendant's needs.
new text end

new text begin Subd. 2. new text end

new text begin Community-based competence restoration. new text end

new text begin (a) If the court finds the defendant
does not pose a risk to public safety and is otherwise qualified for pretrial release, the court
shall schedule a status hearing to take place within 12 days and order the forensic navigator
to issue a report detailing out of custody recommendations for the defendant.
new text end

new text begin (b) The forensic navigator shall report within ten days, in writing, to the court with a
recommendation as to placement or services that are appropriate to restore the defendant
to competence and protect public safety. The forensic navigator shall also identify the agency
or party responsible for monitoring the conditions and informing the court if there are any
violations of conditions of release.
new text end

new text begin (c) The court shall distribute the forensic navigator's report to the parties 48 hours prior
to the status hearing. The status hearing may be continued for good cause for up to an
additional 14 days. If the status hearing does not take place within 14 days, the court shall
order interim placement based on the information available.
new text end

new text begin (d) Upon conclusion of the status hearing, the court shall review the conditions of release.
The court shall order the defendant into a competence restoration program as a condition
of release.
new text end

new text begin (e) Upon application by the prosecutor, the agency assigned to supervise a defendant or
its designee, or court services, alleging that the defendant violated a condition of release,
the court shall follow the procedures within rule 6 of the Rules of Criminal Procedure. Any
hearing on the alleged violation of release conditions shall be held within 15 days of the
issuance of a summons or apprehension on the warrant.
new text end

new text begin Subd. 3. new text end

new text begin In-custody competence restoration. new text end

new text begin (a) If the court finds that the defendant
poses a risk to public safety, or that the defendant is otherwise not qualified for pretrial
release, the court shall order the defendant to a secure treatment facility or jail-based program
where the defendant shall receive the appropriate care, education, and treatment to restore
the defendant to competence.
new text end

new text begin (b) If the defendant is in custody at the time of the finding of incompetence, the defendant
shall be transported to the secure treatment facility or a jail-based program pursuant to
section 628.74 within 72 hours, excluding weekends and holidays, of the finding of
incompetence.
new text end

new text begin (c) A defendant under this section must not be ordered to participate in a secure treatment
facility or jail-based program for a total number of days that exceeds the maximum term
provided by law for the offense for which the defendant was charged.
new text end

new text begin Subd. 4. new text end

new text begin Report requirement. new text end

new text begin (a) Within 90 days of filing of the order finding the
defendant incompetent, and every six months thereafter, the court shall appoint an examiner
to provide to the court a written report pursuant to section 628.74, subdivision 2, paragraph
(b), and the following:
new text end

new text begin (1) an opinion on the defendant's current mental condition;
new text end

new text begin (2) a description of the efforts made to restore the defendant to competence; and
new text end

new text begin (3) if it is reported that the defendant cannot be restored to competence, an opinion on:
new text end

new text begin (i) whether the defendant meets the criteria for civil commitment under one or more of
the provisions in section 253B.02, subdivision 2, 17, 17a, or 17b; and
new text end

new text begin (ii) whether the administration of neuroleptics pursuant to section 628.77 should be
initiated or continued.
new text end

new text begin (b) The court shall furnish copies of these reports to the prosecutor and defense counsel.
new text end

Sec. 10.

new text begin [628.79] ADMINISTRATION OF NEUROLEPTIC MEDICATIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Application. new text end

new text begin This section applies to a defendant who has been determined
to be incompetent to proceed in a criminal matter and is presently in a competence restoration
program.
new text end

new text begin Subd. 2. new text end

new text begin Medication refusal. new text end

new text begin (a) At any time after a defendant has been found
incompetent to proceed and ordered into a competence restoration program, a request may
be made for the administration of neuroleptic medications. If the defendant is not consenting
to, lacks the capacity to consent, or is not responding to treatment and is unlikely to be
restored to competence without the administration of psychiatric medication over the
defendant's objection, the director of the treatment facility or defendant's treatment provider
may request that the court order the administration of neuroleptic medications.
new text end

new text begin (b) The request shall be in writing and shall address whether:
new text end

new text begin (1) medication is necessary to render the defendant competent;
new text end

new text begin (2) medication is substantially likely to render the defendant competent;
new text end

new text begin (3) medication is substantially unlikely to produce side effects that would significantly
interfere with the defendant's ability to assist in the defendant's defense;
new text end

new text begin (4) no less intrusive means of treatment are available; and
new text end

new text begin (5) medication is medically appropriate and is in the defendant's best medical interest
in light of the defendant's medical condition.
new text end

new text begin (c) The director or provider shall also state in the request a description of the defendant's
diagnosis and whether less intrusive means of treatment have been attempted to render the
defendant competent.
new text end

new text begin Subd. 3. new text end

new text begin Independent examiner. new text end

new text begin Upon receipt of the request, the court shall appoint
an independent examiner to provide a written report addressing factors listed in subdivision
2, paragraph (b). The report shall be submitted at least 48 hours before a hearing.
new text end

new text begin Subd. 4. new text end

new text begin Hearing. new text end

new text begin (a) The court shall hold a hearing within 14 days of the filing of the
request. By agreement of the parties or for good cause, the court may extend the time for
the hearing up to 14 additional days.
new text end

new text begin (b) The court, in determining whether a defendant should be medicated over the
defendant's objection, shall consider whether:
new text end

new text begin (1) important state interests are at stake in restoring the defendant's competence;
new text end

new text begin (2) any involuntary medication proposed:
new text end

new text begin (i) is substantially likely to render the defendant competent to proceed in the criminal
matter; and
new text end

new text begin (ii) is not substantially likely to produce side effects that would significantly interfere
with the defendant's ability to assist the defense counsel in conducting the defendant's
defense;
new text end

new text begin (3) involuntary medication is necessary to further important state interests;
new text end

new text begin (4) the medications are necessary because any alternate less intrusive treatments are
unlikely to achieve substantially the same results; and
new text end

new text begin (5) the administration of the proposed medication is medically appropriate, as it is in
the defendant's best medical interest in light of the defendant's medical condition.
new text end

new text begin (c) The court shall weigh the factors listed in paragraph (b) against the defendant's interest
to be free from unwanted medical treatment based on the following:
new text end

new text begin (1) whether the defendant demonstrates an awareness of the nature of the defendant's
situation, including the reasons for hospitalization;
new text end

new text begin (2) whether the defendant demonstrates an understanding of treatment with neuroleptic
medications and the risks, benefits, and alternatives; and
new text end

new text begin (3) whether the defendant communicates verbally or nonverbally a clear choice regarding
treatment with neuroleptic medications that is a reasoned one not based on delusion.
new text end

new text begin (d) The court may base its decision on relevant and admissible evidence, including
reliable hearsay, the testimony of a treating physician or other qualified physician, a member
of the defendant's treatment team or treatment provider, a court-appointed examiner, witness
testimony, or the defendant's treatment records.
new text end

new text begin Subd. 5. new text end

new text begin Findings; order. new text end

new text begin (a) If the court finds by preponderance of the evidence that
the involuntary administration of psychiatric medication to a defendant under this section
is necessary and appropriate, it shall make findings addressing each of the factors in
subdivision 4, paragraphs (b) and (c), and shall issue an order authorizing the administration
of psychiatric medication to the defendant over the defendant's objection to restore the
defendant to competence.
new text end

new text begin (b) The court may order that medication be administered by more intrusive methods
only if the defendant has refused administration by less intrusive methods. The court may
order that the director or provider report to the court within a reasonable period following
entry of the order as to whether the authorized treatment remains appropriate.
new text end

new text begin (c) If physical force is required to administer the neuroleptic medication, the facility or
program may only use injectable medications. If physical force is needed to administer the
medication, medication may only be administered in a setting where the person's condition
can be reassessed and medical personnel qualified to administer medication are available,
including in the community, a jail-based program, or a secure treatment facility. The facility
or program may not use a nasogastric tube to administer neuroleptic medication involuntarily.
new text end

new text begin Subd. 6. new text end

new text begin Emergency administration. new text end

new text begin A treating physician may administer neuroleptic
medication to a defendant if the treating physician determines that the medication is necessary
to prevent serious, immediate physical harm to the defendant or to others. Medication may
be administered for as long as the emergency continues to exist, up to 14 days. The treating
physician may continue the medication through the date of the first court hearing under this
section if a request has been filed and the emergency continues to exist. The treatment
facility shall document the emergency in the defendant's medical record in specific behavioral
terms.
new text end

Sec. 11.

new text begin [628.80] PROCEDURES UPON RESTORATION TO COMPETENCE.
new text end

new text begin Subdivision 1. new text end

new text begin Restoration. new text end

new text begin (a) When the head of the competence restoration program
believes a defendant is competent, the head of the program shall send a written report to
the court setting forth the basis for that opinion. The report may also make recommendations
for continued treatment to ensure continued competence. If the defendant is found guilty,
these recommendations may be considered by the court in imposing a sentence, including
any conditions of probation.
new text end

new text begin (b) The court shall promptly provide copies of this report to the prosecutor and the
defense counsel. Within ten days of receiving such report, either party may request, in
writing, a hearing on the issue of whether the defendant has been restored to competence.
new text end

new text begin Subd. 2. new text end

new text begin Request for hearing on restoration to competence. new text end

new text begin (a) If a hearing on the
defendant's restoration to competence is requested, the court shall schedule a hearing within
30 days of the filing of the request, unless extended upon agreement of the parties or for
good cause.
new text end

new text begin (b) If an additional examiner is retained, the hearing shall be continued up to 30 days
after the filing of the additional examiner's report. The court may continue the hearing for
up to an additional 30 days for good cause or upon agreement of the parties.
new text end

new text begin Subd. 3. new text end

new text begin Procedures on hearing on restoration to competence. new text end

new text begin (a) The party who
requested the competence hearing shall present evidence first.
new text end

new text begin (b) The court may admit all relevant and reliable evidence, including the report from
the competence restoration program. The examiner who authored the report stating that the
defendant had been restored to competence is considered the court's witness and may be
called and cross-examined by any party. The report of any court-appointed examiner shall
be admitted into evidence without further foundation.
new text end

new text begin (c) Defense counsel may testify, subject to the prosecutor's cross-examination, but shall
not violate the attorney-client privilege. Testifying does not automatically disqualify defense
counsel from continuing to represent the defendant. The court may inquire of defense counsel
regarding the attorney-client relationship and the defendant's ability to communicate with
counsel. The court shall not require counsel to divulge communications protected by the
attorney-client privilege, and the prosecutor cannot cross-examine defense counsel concerning
responses to the court's inquiry.
new text end

new text begin Subd. 4. new text end

new text begin Burden of proof and decision. new text end

new text begin If the court finds by preponderance of the
evidence that the defendant has been restored to competence, the court shall enter an order
finding the defendant competent. Otherwise, the court shall enter an order finding that the
defendant remains incompetent and shall refer the defendant for continued treatment subject
to section 628.78.
new text end

new text begin Subd. 5. new text end

new text begin Determination without a hearing. new text end

new text begin If no contested competence hearing is
requested, upon the expiration of the ten-day period, the court shall make a determination
whether the defendant has been restored to competence based solely on the report from the
competence restoration program. The court shall address any conditions of release or change
in custody of the defendant and shall set the matter on for further criminal proceedings.
new text end

Sec. 12.

new text begin [628.81] REQUEST FOR CHANGES IN SUPERVISION.
new text end

new text begin (a) The prosecutor, defense counsel, forensic navigator, or person charged with the
defendant's supervision shall request that the court approve any changes to the defendant's
placement, conditions of release, or both. Notice of the proposed changes must be given to
both parties, the court, and the forensic navigator. Either party or the court may object to
the proposed changes within seven days.
new text end

new text begin (b) If either party or the court object to the proposed changes, the court must schedule
a hearing to occur within 14 days to review the defendant's competence restoration
programming, any conditions of release, or both. The court may issue orders for access by
the parties to information or records referenced in this chapter. The forensic navigator must
be given notice of the hearing and be allowed to participate.
new text end

new text begin (c) No changes to the defendant's placement or conditions of release may occur prior to
the expiration of the notice period unless permitted by the court.
new text end

Sec. 13.

new text begin [628.82] CONCURRENT FILING.
new text end

new text begin If the report under section 628.78 provides an opinion that the defendant is unlikely to
be restored to competence, nothing in that section precludes or impedes the prosecutor's
ability to proceed concurrently under chapter 253B. Upon request of the prosecutor, the
court shall order the report released to the prepetition screening team.
new text end

Sec. 14.

new text begin [628.83] DISMISSAL OF CRIMINAL CHARGE.
new text end

new text begin Subdivision 1. new text end

new text begin Felonies. new text end

new text begin Except when the defendant is charged with murder, felony-level
criminal charges shall be dismissed three years after the date on which the defendant was
found incompetent to proceed unless the defendant is found competent by the court prior
to the expiration of three years or the prosecutor, before the expiration of the three-year
period, files a notice of intent to prosecute when the defendant regains competence.
new text end

new text begin Subd. 2. new text end

new text begin Gross misdemeanors. new text end

new text begin Gross misdemeanor criminal charges shall be dismissed
120 days after the date of finding the defendant incompetent to proceed unless before that
date the defendant is found competent by the court or the prosecutor files a notice of intent
to prosecute when the defendant regains competence. If a notice of intent to prosecute is
filed, the charges shall be dismissed when the defendant would be entitled under these rules
to custody credit of at least one year if convicted or three years after the date of finding the
defendant incompetent to proceed.
new text end

new text begin Subd. 3. new text end

new text begin Misdemeanors. new text end

new text begin Misdemeanor criminal charges shall be dismissed after receipt
of the 90-day report under section 628.78, subdivision 4, unless the defendant becomes
competent prior to that date or the defendant is charged with a misdemeanor as listed in
section 299C.10, subdivision 1, paragraph (e). If the defendant is charged with a misdemeanor
listed in section 299C.10, subdivision 1, paragraph (e), the procedures under subdivision 2
of this section apply.
new text end

new text begin Subd. 4. new text end

new text begin Court-appointed counsel. new text end

new text begin If the defendant has been represented in the criminal
matter by a public defender or other court-appointed counsel, the court shall discharge the
criminal defense counsel upon dismissal of the criminal charges.
new text end

Sec. 15.

new text begin [628.84] DEFENDANT'S PARTICIPATION AND CONDUCT AT
HEARINGS.
new text end

new text begin Subdivision 1. new text end

new text begin Place of hearing. new text end

new text begin Upon request of a party and approval of the court, a
hearing may be held at a treatment facility. A hearing may be conducted by interactive video
conference consistent with the Rules of Criminal Procedure, or other procedure authorized
by the supreme court.
new text end

new text begin Subd. 2. new text end

new text begin Absence permitted. new text end

new text begin When a mental health provider treating the defendant
submits a written report that participating in a hearing under this statute is not in the best
interest of the defendant and would be detrimental to the defendant's mental or physical
health, then the court shall allow the hearing to proceed without defendant's participation.
new text end

new text begin Subd. 3. new text end

new text begin Disruption of hearing. new text end

new text begin At any hearing required under this statute, the court,
on its motion or on the motion of any party, may exclude or excuse a defendant who is
seriously disruptive, refuses to participate, or who is incapable of comprehending and
participating in the proceedings. In such instances, the court shall, with specificity on the
record, state the behavior of the defendant or other circumstances which justify proceeding
in the absence of the defendant.
new text end

new text begin Subd. 4. new text end

new text begin Issues not requiring defendant's participation. new text end

new text begin The defendant's incompetence
does not preclude defense counsel from making an objection or defense before trial that can
be fairly determined without the defendant's participation.
new text end

Sec. 16.

new text begin [628.85] ADMISSIBILITY OF DEFENDANT'S STATEMENTS.
new text end

new text begin When a defendant is examined under this statute, any statement made by the defendant
for the purpose of the examination and any evidence derived from the examination is
admissible at the competence proceedings only.
new text end

Sec. 17.

new text begin [628.86] CREDIT FOR CONFINEMENT.
new text end

new text begin If the defendant is convicted, any time spent confined in a secure treatment facility or
jail-based program pursuant to any section of this chapter shall be credited as time served
in addition to any other credit as time served the defendant is otherwise entitled. At
sentencing, the court may consider granting credit as time served for time spent in a
competence restoration program.
new text end

Sec. 18.

new text begin [628.87] PLANNING AND IMPLEMENTATION.
new text end

new text begin Subdivision 1. new text end

new text begin Planning. new text end

new text begin (a) By September 1, 2023, the judicial branch shall establish
a planning committee to oversee the implementation of forensic navigator programs in each
judicial district.
new text end

new text begin (b) The planning committee must include:
new text end

new text begin (1) the chief justice or a designee;
new text end

new text begin (2) the commissioner of human services or a designee;
new text end

new text begin (3) the direct care and treatment deputy commissioner or a designee;
new text end

new text begin (4) the state court administrator or a designee;
new text end

new text begin (5) a county attorney or assistant county attorney selected by the Minnesota County
Attorney's Association;
new text end

new text begin (6) the state public defender or a designee;
new text end

new text begin (7) the president of the Association of Minnesota Counties or a designee;
new text end

new text begin (8) the president of the Minnesota Association of County Social Service Administrators
or a designee;
new text end

new text begin (9) the president of the Minnesota Association of Community Mental Health Providers
or a designee;
new text end

new text begin (10) the president of the Minnesota Corrections Association or a designee;
new text end

new text begin (11) the president of the Minnesota Sheriffs' Association or a designee;
new text end

new text begin (12) the president of the Minnesota Chiefs of Police association or a designee;
new text end

new text begin (13) the president of the board of directors of the League of Minnesota Cities or a
designee; and
new text end

new text begin (14) a representative from a community organization representing victims of crimes,
selected by the chief justice.
new text end

new text begin (c) Forensic navigator programs shall be planned and designed to promote prevention
and diversion of people found to be incompetent as the result of mental illnesses and cognitive
impairments from entering the legal system, support defendants in the competency process,
and assist courts and partners in coordinating and providing competence restoration services
to defendants. The plan must include:
new text end

new text begin (1) procedures for hiring and training forensic navigators according to the standards of
section 628.77;
new text end

new text begin (2) policies and procedures for interagency communication and collaboration,
communication with defendants, data privacy, and public safety; and
new text end

new text begin (3) policies and procedures for evaluating the program according to this section.
new text end

new text begin Subd. 2. new text end

new text begin Program evaluation. new text end

new text begin (a) Each judicial district shall collect the following data
and submit it annually to the state court administrator's office:
new text end

new text begin (1) the total number of competency examinations ordered in the judicial district separated
by county;
new text end

new text begin (2) the age, race, and number of unique defendants and for whom at least one competency
examination was ordered in the judicial district separated by county;
new text end

new text begin (3) the age, race, and number of unique defendants found incompetent at least once in
the judicial district separated by county; and
new text end

new text begin (4) all available data on the level of charge and adjudication of cases with a defendant
found incompetent and whether a forensic navigator was assigned to the case.
new text end

new text begin (b) The judicial branch must include a summary and analysis of the data collected under
this section in every annual report beginning in 2024.
new text end

new text begin (c) The state court administrator's office must include a summary and analysis of the
data collected under this section in a report and submit it to the legislature by January 1,
2025, including any recommendations for improving forensic navigator services or
competency to stand trial procedures.
new text end

Sec. 19.

new text begin [628.88] CERTIFICATION OF COMPETENCE RESTORATION
PROGRAMMING.
new text end

new text begin Subdivision 1. new text end

new text begin Certification. new text end

new text begin The Department of Human Services shall, by January
2023, establish a statewide certification process for certifying that a competence restoration
program, whether secure, inpatient, or outpatient:
new text end

new text begin (1) complies with state licensing requirements and any additional requirements issued
by the commissioner;
new text end

new text begin (2) employs or contracts for clinic staff who have backgrounds in diverse disciplines,
including licensed mental health professionals and licensed alcohol and drug counselors,
and staff who are culturally and linguistically trained to meet the needs of the population
receiving services;
new text end

new text begin (3) complies with quality assurance reporting requirements and other reporting
requirements, including any required reporting of encounter data, clinical outcomes data,
and quality data;
new text end

new text begin (4) provides coordination of care across settings and providers to ensure seamless
transitions for individuals being served across the full spectrum of health services, including
acute, chronic, and behavioral needs. Care coordination may be accomplished through
partnerships or formal contracts with counties, health plans, pharmacists, pharmacies, rural
health clinics, federally qualified health centers, inpatient psychiatric facilities, substance
use and detoxification facilities, or community-based mental health providers; and
new text end

new text begin (5) employs any recommended evidence-based practices as required by the commissioner.
new text end

new text begin Subd. 2. new text end

new text begin Evaluation. new text end

new text begin (a) The Department of Human Services shall contract with experts
to evaluate the certification standards and review and identify relevant information and
evidence-based best practices and methodologies for effectively assessing and restoring
individuals to competency.
new text end

new text begin (b) These experts must include at least three who are licensed psychologists, psychiatrists,
clinical therapists, or other mental health treatment providers with established and recognized
training and experience in the assessment and treatment of individuals with serious and
persistent mental illness and at least one nontreatment professional with relevant training
and experience regarding the oversight or licensing of mental health treatment programs.
new text end

new text begin (c) The Department of Human Services shall enter into contracts as necessary to fulfill
the responsibilities under this subdivision.
new text end

new text begin Subd. 3. new text end

new text begin Public-private partnerships. new text end

new text begin The Department of Human Services may establish
a mechanism by which counties, the Department of Human Services, hospitals, health plans,
consumers, providers, and others may enter into agreements that allow for capacity building
and oversight of any agreed-upon entity that is developed through these partnerships. The
purpose of these partnerships is the development and provision of mental health services
and competence restoration services which would be more effective, efficient, and accessible
than services that might be provided separately by each partner.
new text end

Sec. 20. new text begin SUPREME COURT; APPROPRIATIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Forensic navigator services. new text end

new text begin $....... in fiscal year 2023 is appropriated
from the general fund to the supreme court for forensic navigator services in each of the
ten judicial districts. The amount given to each district must be based on the population of
the district according to the most-recent United States census data. In distributing funds,
the supreme court may also consider the specific needs of each district, including disparities
in current available resources, travel time and costs for forensic navigators in rural areas,
and video technology for remote hearings.
new text end

new text begin Subd. 2. new text end

new text begin Competence restoration programs. new text end

new text begin $....... in fiscal year 2023 is appropriated
from the general fund to the supreme court to establish competence restoration programs
in each of the ten judicial districts. The amount given to each district must be based on the
population of the district according to the most-recent United States census data. Competence
restoration programs must meet the requirements of Minnesota Statutes, section 628.88.
Judicial districts may contract to establish competence restoration programs, including but
not limited to contracting with counties, Adult Mental Health Initiative regions, hospitals,
mental health treatment providers, substance use disorder treatment providers, correctional
facilities, and community-based programs.
new text end

new text begin Subd. 3. new text end

new text begin Competence examiners. new text end

new text begin $....... in fiscal year 2023 is appropriated from the
general fund to the supreme court to retain or contract for examiners and evaluators to
complete competence evaluations.
new text end