22-3303. Commitment of incompetent defendant; limitation; civil commitment proceedings; regained competency; credit for time committed; victim notification; evaluation and treatment; psychotropic medication, limitations thereon. (a) (1) A defendant who is charged with a crime and is found to be incompetent to stand trial shall be ordered for evaluation and treatment, conducted on an outpatient or inpatient basis, by an appropriate state, county or private institution or facility. Evaluation or restorative treatment of a defendant shall not be conducted in a jail unless the administrative head or law enforcement official in charge of the jail agrees to such evaluation or restorative treatment being conducted in such jail.

(2) An evaluation and treatment may be ordered to be conducted on an outpatient basis in person or by use of available electronic means while the defendant is in jail, at any secure location, on pretrial release or in any other appropriate setting.

(3) For a defendant charged with a misdemeanor offense, outpatient evaluation and treatment may be ordered to be conducted by an appropriate state, county or private institution or facility.

(4) For a defendant charged with a felony offense, outpatient evaluation and treatment may be ordered to be conducted by an appropriate state, county or private institution or facility.

(5) For a defendant charged with a felony offense, a commitment to the state security hospital or its agent or a state hospital or its agent may by conducted on a inpatient basis or, if the defendant meets the screening criteria established by the state security hospital, on an outpatient basis.

(6) At the commencement of outpatient treatment, the institution or facility conducting the treatment shall notify the prosecuting attorney in the county where the criminal proceeding is pending for the purpose of providing victim notification.

(b) (1) Except as provided in subsection (d), if the defendant is ordered to receive an evaluation and treatment on an outpatient basis conducted by an appropriate state, county or private institution or facility, the chief medical officer of such institution or head of such facility shall certify to the court, within 90 days after the commencement of outpatient treatment, whether the defendant has a substantial probability of attaining competency to stand trial in the foreseeable future. The court shall set a hearing within 21 days after certification unless exceptional circumstances warrant delay, for the purpose of determining competency.

(2) If such probability does exist, the court shall order the defendant to remain in jail or at a secure location, on pretrial release pursuant to K.S.A. 22-2802, and amendments thereto, or at an appropriate setting until the defendant attains competency to stand trial or for a period of six months from the date of the commencement of outpatient treatment, whichever occurs first. If such probability does not exist, the court shall order the prosecuting attorney where the charges are filed to commence involuntary commitment proceedings pursuant to article 29 of chapter 59 of the Kansas Statutes Annotated, and amendments thereto, within 21 days of receipt of the certification from the chief medical officer of the institution or head of the facility unless exceptional circumstances warrant delay. When a defendant is charged with any off-grid felony, any nondrug severity level 1 through 3 felony, or a violation of K.S.A. 21-3504, 21-3511, 21-3518, 21-3603 or 21-3719, prior to their repeal, or K.S.A. 21-5505(b), 21-5506(b), 21-5508(b), 21-5604(b) or 21-5812(b), and amendments thereto, and commitment proceedings have commenced, for such proceeding, "mentally ill person subject to involuntary commitment for care and treatment" means a mentally ill person, as defined in K.S.A. 59-2946(e), and amendments thereto, who is likely to cause harm to self or others, as defined in K.S.A. 59-2946(f)(3), and amendments thereto. The other provisions of K.S.A. 59-2946(f), and amendments thereto, shall not apply.

(3) If a defendant who was found to have had a substantial probability of attaining competency to stand trial, as provided in paragraph (2), has not attained competency to stand trial within six months from the date of the original commitment, the court shall order the prosecuting attorney where the charges are filed or the secretary for aging and disability services to commence involuntary commitment proceedings pursuant to article 29 of chapter 59 of the Kansas Statutes Annotated, and amendments thereto, within 21 days of receipt of the certification from the chief medical officer of the institution or the head of the facility unless exceptional circumstances warrant delay. When a defendant is charged with any off-grid felony, any nondrug severity level 1 through 3 felony, or a violation of K.S.A. 21-3504, 21-3511, 21-3518, 21-3603 or 21-3719, prior to their repeal, K.S.A. 21-5505(b), 21-5506(b), 21-5508(b), 21-5604(b) or 21-5812(b), and amendments thereto, and commitment proceedings have commenced, for such proceeding, "mentally ill person subject to involuntary commitment for care and treatment" means a mentally ill person, as defined in K.S.A. 59-2946(e), and amendments thereto, who is likely to cause harm to self or others, as defined in K.S.A. 59-2946(f)(3), and amendments thereto. The other provisions of K.S.A. 59-2946(f), and amendments thereto, shall not apply.

(4) When reasonable grounds exist to believe that a defendant who has been adjudged incompetent to stand trial is competent, the court in which the criminal case is pending shall conduct a hearing in accordance with K.S.A. 22-3302, and amendments thereto, to determine the person's present mental condition. Such court shall give reasonable notice of such hearings to the prosecuting attorney, the defendant and the defendant's attorney of record, if any. The prosecuting attorney shall provide victim notification. If the court, following such hearing, finds the defendant to be competent, the proceedings pending against the defendant shall be resumed.

(5) A defendant committed to a public institution or facility under the provisions of this section who is thereafter sentenced for the crime charged at the time of commitment shall be credited with all of the time during which the defendant was committed and confined in such public institution or facility.

(c) (1) Except as provided in subsection (d), if a defendant is ordered or met criteria to receive an evaluation and treatment on an outpatient basis conducted by the state security hospital or its agent or a state hospital or its agent, the chief medical officer shall certify to the court, within 90 days after commencement of treatment, whether the defendant has a substantial probability of attaining competency to stand trial in the foreseeable future.

(2) If such probability does exist, the court shall order the defendant to remain in jail or at a secure location, on pretrial release pursuant to K.S.A. 22-2802, and amendments thereto, or at an appropriate setting until the defendant attains competency to stand trial or for a period of six months from the date of the commencement of outpatient treatment, whichever occurs first. If such probability does not exist, the court shall order the prosecuting attorney where the charges are filed or the secretary for aging and disability services to commence involuntary commitment proceedings pursuant to article 29 of chapter 59 of the Kansas Statutes Annotated, and amendments thereto, within 21 days of receipt of the certification from the chief medical officer of the institution or the head of the facility unless exceptional circumstances warrant delay. When a defendant is charged with any off-grid felony, any nondrug severity level 1 through 3 felony or a violation of K.S.A. 21-3504, 21-3511, 21-3518, 21-3603 or 21-3719, prior to their repeal, or K.S.A. 21-5505(b), 21-5506(b), 21-5508(b), 21-5604(b) or 21-5812(b), and amendments thereto, and commitment proceedings have commenced, for such proceeding, "mentally ill person subject to involuntary commitment for care and treatment" means a mentally ill person, as defined in K.S.A. 59-2946(e), and amendments thereto, who is likely to cause harm to self or others, as defined in K.S.A. 59-2946(f)(3), and amendments thereto. The other provisions of K.S.A. 59-2946(f), and amendments thereto, shall not apply.

(3) If a defendant who was found to have had a substantial probability of attaining competency to stand trial, as provided in paragraph (2), has not attained competency to stand trial within six months from the date of the original commitment, the court shall order the prosecuting attorney where the charges are filed or the secretary for aging and disability services to commence involuntary commitment proceedings pursuant to article 29 of chapter 59 of the Kansas Statutes Annotated, and amendments thereto, within 21 days of receipt of the certification from the chief medical officer of the institution or the head of the facility unless exceptional circumstances warrant delay. When a defendant is charged with any off-grid felony, any nondrug severity level 1 through 3 felony or a violation of K.S.A. 21-3504, 21-3511, 21-3518, 21-3603 or 21-3719, prior to their repeal, or K.S.A. 21-5505(b), 21-5506(b), 21-5508(b), 21-5604(b) or 21-5812(b), and amendments thereto, and commitment proceedings have commenced, for such proceeding, "mentally ill person subject to involuntary commitment for care and treatment" means a mentally ill person, as defined in K.S.A. 59-2946(e), and amendments thereto, who is likely to cause harm to self or others, as defined in K.S.A. 59-2946(f)(3), and amendments thereto. The other provisions of K.S.A. 59-2946(f), and amendments thereto, shall not apply.

(4) When reasonable grounds exist to believe that a defendant who has been adjudged incompetent to stand trial is competent, the court in which the criminal case is pending shall conduct a hearing in accordance with K.S.A. 22-3302, and amendments thereto, to determine the person's present mental condition. Such court shall give reasonable notice of such hearings to the prosecuting attorney, the defendant and the defendant's attorney of record, if any. The prosecuting attorney shall provide victim notification. If the court, following such hearing, finds the defendant to be competent, the proceedings pending against the defendant shall be resumed.

(5) A defendant committed to a public institution or facility under the provisions of this section who is thereafter sentenced for the crime charged at the time of commitment shall be credited with all of the time during which the defendant was committed and confined in such public institution or facility.

(d) (1) If the defendant is ordered or met criteria to receive an evaluation and treatment on an outpatient basis and the chief medical officer of the appropriate state, county or private institution or facility determines that the defendant's mental health condition or behaviors warrant terminating outpatient treatment services and commencing evaluation and treatment on an inpatient basis, the chief medical officer of the institution or the head of the facility shall provide a report to the court within 10 days after outpatient treatment services are terminated. Such report shall certify the date that outpatient treatment was terminated and the reason inpatient evaluation and treatment services are recommended. A copy of such report shall be provided to the chief medical officer of the state security hospital. Upon receipt of such report, the court shall issue any orders or warrants required to facilitate the sheriff of the county where the charges are filed to take the defendant into custody and transport such defendant to the state security hospital or its agent or a state hospital or its agent for admission for inpatient services. The chief medical officer shall submit a report pursuant to subsection (e) as to whether the defendant has attained competency within 90 days of the defendant's admission to such hospital for inpatient evaluation and treatment.

(2) The court, prosecuting attorney where criminal charges are pending, the defense counsel for a defendant charged with a felony offense who is receiving outpatient evaluation and treatment services and the chief medical officer of any institution or the head of any facility where the defendant is receiving outpatient services shall provide requested documentation to the state security hospital or its agent or the state hospital or its agent for the purpose of managing inpatient admission.

(e) (1) If the defendant is charged with a felony offense, the court may order a defendant to receive inpatient evaluation and treatment at an appropriate state, county or private institution or facility after considering the defendant's mental condition, behaviors and the availability of outpatient evaluation and treatment options. The chief medical officer of the institution or the head of the facility shall certify to the court, within 90 days after the commencement of inpatient treatment, whether the defendant has a substantial probability of attaining competency to stand trial in the foreseeable future.

(2) If such probability does exist, the court shall order the defendant to remain in jail or at a secure location, on pretrial release pursuant to K.S.A. 22-2802, and amendments thereto, or at an appropriate setting until the defendant attains competency to stand trial or for a period of six months from the date of the commencement of inpatient treatment, whichever occurs first. If such probability does not exist, the court shall order the prosecuting attorney where the charges are filed or the secretary for aging and disability services to commence involuntary commitment proceedings pursuant to article 29 of chapter 59 of the Kansas Statutes Annotated, and amendments thereto, within 21 days of receipt of the certification from the chief medical officer of the institution or the head of the facility unless exceptional circumstances warrant delay. When a defendant is charged with any off-grid felony, any nondrug severity level 1 through 3 felony or a violation of K.S.A. 21-3504, 21-3511, 21-3518, 21-3603 or 21-3719, prior to their repeal, or K.S.A. 21-5505(b), 21-5506(b), 21-5508(b), 21-5604(b) or 21-5812(b), and amendments thereto, and commitment proceedings have commenced, for such proceeding, "mentally ill person subject to involuntary commitment for care and treatment" means a mentally ill person, as defined in K.S.A. 59-2946(e), and amendments thereto, who is likely to cause harm to self or others, as defined in K.S.A. 59-2946(f)(3), and amendments thereto. The other provisions of K.S.A. 59-2946(f), and amendments thereto, shall not apply.

(3) If a defendant who was found to have had a substantial probability of attaining competency to stand trial, as provided in paragraph (2), has not attained competency to stand trial within six months from the date of the original commitment, the court shall order the prosecuting attorney where the charges are filed or the secretary for aging and disability services to commence involuntary commitment proceedings pursuant to article 29 of chapter 59 of the Kansas Statutes Annotated, and amendments thereto, within 21 days of receipt of the certification from the chief medical officer of the institution or the head of the facility unless exceptional circumstances warrant delay. When a defendant is charged with any off-grid felony, any nondrug severity level 1 through 3 felony or a violation of K.S.A. 21-3504, 21-3511, 21-3518, 21-3603 or 21-3719, prior to their repeal, or K.S.A. 21-5505(b), 21-5506(b), 21-5508(b), 21-5604(b) or 21-5812(b), and amendments thereto, and commitment proceedings have commenced, for such proceeding, "mentally ill person subject to involuntary commitment for care and treatment" means a mentally ill person, as defined in K.S.A. 59-2946(e), and amendments thereto, who is likely to cause harm to self or others, as defined in K.S.A. 59-2946(f)(3), and amendments thereto. The other provisions of K.S.A. 59-2946(f), and amendments thereto, shall not apply.

(4) When reasonable grounds exist to believe that a defendant who has been adjudged incompetent to stand trial is competent, the court in which the criminal case is pending shall conduct a hearing in accordance with K.S.A. 22-3302, and amendments thereto, to determine the person's present mental condition. Such court shall give reasonable notice of such hearings to the prosecuting attorney, the defendant and the defendant's attorney of record, if any. The prosecuting attorney shall provide victim notification. If the court, following such hearing, finds the defendant to be competent, the proceedings pending against the defendant shall be resumed.

(5) A defendant committed to a public institution or facility under the provisions of this section who is thereafter sentenced for the crime charged at the time of commitment shall be credited with all of the time during which the defendant was committed and confined in such public institution or facility.

(f) (1) Notwithstanding the provisions of K.S.A. 59-29a22, and amendments thereto, psychotropic medications may be prescribed for any defendant who is ordered or has met the criteria to receive evaluation and treatment on an inpatient or outpatient basis at an appropriate state, county or private institution or facility.

(2) Psychotropic medications shall be prescribed, ordered and administered in conformity with accepted clinical practice. Psychotropic medication shall be administered only upon the written order of a physician or upon a verbal order noted in the defendant's medical records and subsequently signed by the physician. The attending physician shall regularly review the drug regimen of each defendant under such physician's care and shall monitor any symptoms of harmful side effects.

(3) Whenever any defendant is receiving psychotropic medications that alter the defendant's mental state in such a way as to adversely affect the defendant's judgment or hamper the defendant in preparing for or participating in any hearing provided for by this section, for two days prior to and during any such hearing, the treatment institution or facility shall not administer such medication or treatment unless such medication or treatment is necessary to sustain the defendant's life or to protect the defendant or others. Prior to the hearing, a report of all psychotropic medications or other treatment that has been administered to the defendant and a copy of any written consent signed by the defendant shall be submitted to the court. Counsel for the defendant may preliminarily examine the attending physician regarding the administration of any medication to the defendant within two days of the hearing and the effect that medication may have had on the defendant's judgment or ability to prepare for or participate in the hearing. If the court determines that medication or other treatment has been administered that adversely affects the defendant's judgment or ability to prepare for or participate in the hearing, the court may grant the defendant a reasonable continuance to allow for the defendant to be better able to prepare for or participate in the hearing. The court shall order that such medication or other treatment be discontinued until the conclusion of the hearing unless the court finds that such medication or other treatment is necessary to sustain the defendant's life or to protect the defendant or others. If the court makes such a finding, the court shall order the hearing to proceed.

(4) If a defendant who is charged with a felony is receiving treatment pursuant to this section and is not deemed a present danger to self or others objects to taking any medication prescribed for the purpose of restoring the defendant to competency, the defendant's objection shall be recorded in the defendant's medical record and written notice of such objection shall be forwarded to the medical director of the treatment institution or facility or the director's designee and to the court where the criminal charges are pending. The medication may be administered over the defendant's objection only if the court finds that:

(A) The medication is substantially unlikely to have side effects that may undermine the fairness of the trial;

(B) the medication is medically appropriate;

(C) less intrusive alternatives have been considered;

(D) the medication is necessary to advance significantly important governmental trial interests; and

(E) the administrative head or law enforcement official in charge of the jail has agreed to having the medication administered over the defendant's objection in the jail.

(5) No experimental medication shall be administered without the consent of the defendant or such defendant's legal guardian.

History: L. 1970, ch. 129, § 22-3303; L. 1977, ch. 121, § 2; L. 1992, ch. 309, § 2; L. 2001, ch. 208, § 8; L. 2010, ch. 61, § 2; L. 2011, ch. 30, § 126; L. 2014, ch. 5, § 1; L. 2018, ch. 81, § 2; L. 2022, ch. 76, § 8; July 1.