Session of 1999
SENATE BILL No. 233
By Committee on Public Health and Welfare
2-3
9 AN ACT concerning mental health; relating to screenings and place-
10 ments; amending K.S.A. 22-3302, 22-3303, 22-3429, 22-3430, 22-3431
11 and 38-1514 and K.S.A. 1998 Supp. 22-3305, 38-1513, 38-1614, 38-
12 1637, 38-1638, 38-1639 and 38-1662 and repealing the existing
13 sections.
14
15 Be it enacted by the Legislature of the State of Kansas:
16 Section 1. K.S.A. 22-3302 is hereby amended to read as follows: 22-
17 3302. (1) At any time after the defendant has been charged with a crime
18 and before pronouncement of sentence, the defendant, the defendant's
19 counsel or the prosecuting attorney may request a determination of the
20 defendant's competency to stand trial. If, upon the request of either party
21 or upon the judge's own knowledge and observation, the judge before
22 whom the case is pending finds that there is reason to believe that the
23 defendant is incompetent to stand trial the proceedings shall be sus-
24 pended and a hearing conducted to determine the competency of the
25 defendant.
26 (2) If the defendant is charged with a felony, the hearing to determine
27 the competency of the defendant shall be conducted by a district judge.
28 (3) The court shall determine the issue of competency and may im-
29 panel a jury of six persons to assist in making the determination. The
30 court may order a psychiatric or psychological examination of the de-
31 fendant. To facilitate the examination, the court may: (a) If the defendant
32 is charged with a felony, commit the defendant to the state security hos-
33 pital or any appropriate county or private institution facility for exami-
34 nation and report to the court, or, if the defendant is charged with a
35 misdemeanor, commit the defendant to any appropriate state, county or
36 private institution facility for examination and report to the court, except
37 that the court shall not commit the defendant to the state security hospital
38 or any other state institution psychiatric hospital unless, prior to such
39 commitment, the director of a local county or private institution recom-
40 mends the local community mental health center files with the court a
41 written statement recommending to the court and to the secretary of social
42 and rehabilitation services that the examination of the defendant should
43 be performed at a state institution psychiatric hospital; (b) designate any
44 appropriate psychiatric or psychological clinic, mental health center or
45 other psychiatric or psychological facility to conduct the examination
46 while the defendant is in jail or on pretrial release; or (c) appoint two
47 qualified licensed physicians or licensed psychologists, or one of each, to
48 examine the defendant and report to the court. If the court commits the
49 defendant to an institution a facility or state psychiatric hospital for the
50 examination, the commitment shall be for not more than 60 days or until
51 the examination is completed, whichever is the shorter period of time.
52 No statement made by the defendant in the course of any examination
53 provided for by this section, whether or not the defendant consents to
54 the examination, shall be admitted in evidence against the defendant in
55 any criminal proceeding. Upon notification of the court that a defendant
56 committed for psychiatric or psychological examination under this sub-
57 section has been found competent to stand trial, the court shall order
58 that the defendant be returned not later than five days after receipt of
59 the notice for proceedings under this section. If the defendant is not
60 returned within that time, the county in which the proceedings will be
61 held shall pay the costs of maintaining the defendant at the institution or
62 facility or state psychiatric hospital for the period of time the defendant
63 remains at the institution or facility or state psychiatric hospital in excess
64 of the five-day period.
65 (4) If the defendant is found to be competent, the proceedings which
66 have been suspended shall be resumed. If the proceedings were sus-
67 pended before or during the preliminary examination, the judge who
68 conducted the competency hearing may conduct a preliminary exami-
69 nation or, if a district magistrate judge was conducting the proceedings
70 prior to the competency hearing, the judge who conducted the compe-
71 tency hearing may order the preliminary examination to be heard by a
72 district magistrate judge.
73 (5) If the defendant is found to be incompetent to stand trial, the
74 court shall proceed in accordance with K.S.A. 22-3303 and amendments
75 thereto.
76 (6) If proceedings are suspended and a hearing to determine the
77 defendant's competency is ordered after the defendant is in jeopardy, the
78 court may either order a recess or declare a mistrial.
79 (7) The defendant shall be present personally at all proceedings un-
80 der this section.
81 Sec. 2. K.S.A. 22-3303 is hereby amended to read as follows: 22-
82 3303. (1) A defendant who is charged with a felony and is found to be
83 incompetent to stand trial shall be committed for evaluation and treat-
84 ment to the state security hospital or any appropriate county or private
85 institution facility. A defendant who is charged with a misdemeanor and
86 is found to be incompetent to stand trial shall be committed for evaluation
87 and treatment to any appropriate state, county or private institution fa-
88 cility, except that the court shall not commit the defendant to a state
89 psychiatric hospital, unless a written statement from a qualified mental
90 health professional, as defined in K.S.A. 59-2946, and amendments
91 thereto, authorizing such admission to a state psychiatric hospital has
92 been filed with the court. Any such commitment shall be for a period of
93 not to exceed 90 days. Within 90 days after the defendant's commitment
94 to such institution, the chief medical officer of such institution the facility
95 to which the defendant has been committed shall certify to the court
96 whether the defendant has a substantial probability of attaining compe-
97 tency to stand trial in the foreseeable future. If such probability does
98 exist, the court shall order the defendant to remain in an that facility or
99 another appropriate state, county or private institution facility until the
100 defendant attains competency to stand trial or for a period of six months
101 from the date of the original commitment, whichever occurs first, except
102 that the court shall at no time commit the defendant to a state psychiatric
103 hospital other than the state security hospital in the case of a defendant
104 charged with a felony, unless a written statement from a qualified mental
105 health professional, as defined in K.S.A. 59-2946, and amendments
106 thereto, authorizing such admission to a state psychiatric hospital has
107 been filed with the court. If such probability does not exist, the court shall
108 order the secretary of social and rehabilitation services to commence in-
109 voluntary commitment proceedings pursuant to article 29 of chapter 59
110 of the Kansas Statutes Annotated, and any amendments thereto
111 (2) If a defendant who was found to have had a substantial probability
112 of attaining competency to stand trial, as provided in subsection (1), has
113 not attained competency to stand trial within six months from the date
114 of the original commitment, the court shall order the secretary of social
115 and rehabilitation services to commence involuntary commitment pro-
116 ceedings pursuant to article 29 of chapter 59 of the Kansas Statutes An-
117 notated, and any amendments thereto.
118 (3) When reasonable grounds exist to believe that a defendant who
119 has been adjudged incompetent to stand trial is competent, the court in
120 which the criminal case is pending shall conduct a hearing in accordance
121 with K.S.A. 22-3302 and amendments thereto to determine the person's
122 present mental condition. Reasonable notice of such hearings shall be
123 given to the prosecuting attorney, the defendant and the defendant's at-
124 torney of record, if any. If the court, following such hearing, finds the
125 defendant to be competent, the proceedings pending against the defend-
126 ant shall be resumed.
127 (4) A defendant committed to a public institution an inpatient treat-
128 ment facility under the provisions of this section who is thereafter sen-
129 tenced for the crime charged at the time of commitment may be credited
130 with all or any part of the time during which the defendant was committed
131 and confined in such public institution treatment facility.
132 Sec. 3. K.S.A. 1998 Supp. 22-3305 is hereby amended to read as
133 follows: 22-3305. (1) Whenever involuntary commitment proceedings
134 have been commenced by the secretary of social and rehabilitation serv-
135 ices as required by K.S.A. 22-3303 and amendments thereto, and the
136 defendant is not committed to a treatment facility as a patient, the de-
137 fendant shall remain in the institution facility where committed pursuant
138 to K.S.A. 22-3303 and amendments thereto, and the secretary shall
139 promptly notify the court and the county or district attorney of the county
140 in which the criminal proceedings are pending of the result of the invol-
141 untary commitment proceeding.
142 (2) Whenever involuntary commitment proceedings have been com-
143 menced by the secretary of social and rehabilitation services as required
144 by K.S.A. 22-3303 and amendments thereto, and the defendant is com-
145 mitted to a treatment facility as a patient but thereafter is appropriate to
146 be discharged pursuant to the care and treatment act for mentally ill
147 persons, the defendant shall remain in the institution treatment where
148 committed pursuant to K.S.A. 22-3303 and amendments thereto the care
149 and treatment act for mentally ill persons, and the head of the treatment
150 facility shall promptly notify the court and the county or district attorney
151 of the county in which the criminal proceedings are pending that the
152 defendant is appropriate to be discharged.
153 When giving notification to the court and the county or district attorney
154 pursuant to subsection (1) or (2), the treatment facility shall include in
155 such notification an opinion from the head of the treatment facility as to
156 whether or not the defendant is now competent to stand trial. Upon
157 request of the county or district attorney, the court may set a hearing on
158 the issue of whether or not the defendant has been restored to compe-
159 tency. If no such request is made within 10 days after receipt of notice
160 pursuant to subsection (1) or (2), the court shall order the defendant to
161 be discharged from commitment and shall dismiss without prejudice the
162 charges against the defendant, and the period of limitation for the pros-
163 ecution for the crime charged shall not continue to run until the defend-
164 ant has been determined to have attained competency in accordance with
165 K.S.A. 22-3302 and amendments thereto.
166 Sec. 4. K.S.A. 22-3429 is hereby amended to read as follows: 22-
167 3429. After conviction and prior to sentence and as part of the present-
168 ence investigation authorized by K.S.A. 21-4604 and amendments thereto
169 or for crimes committed on or after July 1, 1993, a presentence investi-
170 gation report as provided in K.S.A. 21-4714 and amendments thereto, the
171 trial judge may order the defendant committed for mental examination,
172 evaluation and report. If the defendant is convicted of a felony, the com-
173 mitment shall be to the state security hospital or any suitable local mental
174 health facility. or if the defendant is convicted of a misdemeanor, the
175 commitment shall be to a state psychiatric hospital or any suitable local
176 mental health facility, except that the court shall not commit the defendant
177 to a state psychiatric hospital other than the state security hospital in the
178 case of a defendant convicted of a felony, unless a written statement from
179 a qualified mental health professional, as defined in K.S.A. 59-2946, and
180 amendments thereto, authorizing such admission to a state psychiatric
181 hospital has been filed with the court. If adequate private facilities are
182 available and if the defendant is willing to assume the expense thereof,
183 commitment may be to a private hospital. A report of the examination
184 and evaluation shall be furnished to the judge and shall be made available
185 to the prosecuting attorney and counsel for the defendant. A defendant
186 may not be detained for more than 120 days under a commitment made
187 under this section.
188 Sec. 5. K.S.A. 22-3430 is hereby amended to read as follows: 22-
189 3430. (a) If the report of the examination authorized by K.S.A. 22-3429
190 and amendments thereto shows that the defendant is in need of psychi-
191 atric care and treatment, that such treatment may materially aid in the
192 defendant's rehabilitation and that the defendant and society are not likely
193 to be endangered by permitting the defendant to receive such psychiatric
194 care and treatment, in lieu of confinement or imprisonment, the trial
195 judge shall have power to commit such defendant to: (1) The state se-
196 curity hospital or any county institution provided for the reception, care,
197 treatment and maintenance of mentally ill persons suitable local mental
198 health facility, if the defendant is convicted of a felony; or (2) any state
199 or county institution provided for the reception, care, treatment and
200 maintenance of mentally ill persons psychiatric hospital or any suitable
201 local mental health facility, if the defendant is convicted of a misde-
202 meanor, except that the court shall not commit the defendant to a state
203 psychiatric hospital other than the state security hospital in the case of a
204 defendant convicted of a felony, unless a written statement from a qual-
205 ified mental health professional, as defined in K.S.A. 59-2946, and amend-
206 ments thereto, authorizing such admission to a state psychiatric hospital
207 has been filed with the court. The court may direct that the defendant be
208 detained in such hospital or institution treatment facility until further
209 order of the court or until the defendant is discharged under K.S.A. 22-
210 3431 and amendments thereto. No period of detention under this section
211 shall exceed the maximum term provided by law for the crime of which
212 the defendant has been convicted. The cost of care and treatment pro-
213 vided by a state institution psychiatric hospital shall be assessed in ac-
214 cordance with K.S.A. 59-2006 and amendments thereto.
215 (b) No defendant committed to the state security hospital pursuant
216 to this section upon conviction of a felony shall be transferred or released
217 from such hospital except on recommendation of the staff of such
218 hospital.
219 (c) The defendant may appeal from any order of commitment made
220 pursuant to this section in the same manner and with like effect as if
221 sentence to a jail, or to the custody of the secretary of corrections had
222 been imposed.
223 Sec. 6. K.S.A. 22-3431 is hereby amended to read as follows: 22-
224 3431. (a) Whenever it appears to the chief medical officer of the insti-
225 tution treatment facility to which a defendant has been committed under
226 K.S.A. 22-3430 and amendments thereto, that the defendant will not be
227 improved by further detention in such institution facility, the chief med-
228 ical officer shall give written notice thereof to the district court where
229 the defendant was convicted. Such notice shall include, but not be limited
230 to: (1) Identification of the patient; (2) the course of treatment; (3) a
231 current assessment of the defendant's psychiatric condition; (4) recom-
232 mendations for future treatment, if any; and (5) recommendations re-
233 garding discharge, if any.
234 (b) Upon receiving such notice, the district court shall order that a
235 hearing be held. The court shall give notice of the hearing to: (1) The
236 state hospital or state security hospital, state psychiatric hospital or local
237 mental health facility where the defendant is under commitment; (2) the
238 district or county attorney of the county from which the defendant was
239 originally committed; (3) the defendant; and (4) the defendant's attorney.
240 The court shall inform the defendant that such defendant is entitled to
241 counsel and that counsel will be appointed to represent the defendant if
242 the defendant is not financially able to employ an attorney as provided in
243 K.S.A. 22-4503 et seq. and amendments thereto. The hearing shall be
244 held within 30 days after the receipt by the court of the chief medical
245 officer's notice.
246 (c) At the hearing, the defendant shall be sentenced, committed, for
247 further treatment as provided for in K.S.A. 22-3430 and amendments
248 thereto, sentenced, granted probation, assigned to a community correc-
249 tional services program or discharged as the court deems best under the
250 circumstance. The time spent in a state or local institution treatment
251 facility pursuant to a commitment under K.S.A. 22-3430 and amend-
252 ments thereto shall be credited against any sentence, confinement or
253 imprisonment imposed on the defendant.
254 Sec. 7. K.S.A. 1998 Supp. 38-1513 is hereby amended to read as
255 follows: 38-1513. (a) Physical or mental care and treatment. (1) When a
256 child less than 18 years of age is alleged to have been sexually abused, no
257 consent shall be required to medically examine the child to determine
258 whether there has been sexual abuse.
259 (2) When the health or condition of a child who is a ward of the court
260 requires it, the court may consent to the performing and furnishing of
261 hospital, medical, surgical or dental treatment or procedures, including
262 psychiatric care or treatment other than inpatient treatment at a state
263 psychiatric hospital and the release and inspection of medical or dental
264 records. A child, or parent of any child, who is opposed to certain medical
265 procedures authorized by this subsection may request an opportunity for
266 a hearing thereon before the court. Subsequent to the hearing, the court
267 may limit the performance of matters provided for in this subsection or
268 may authorize the performance of those matters subject to terms and
269 conditions the court considers proper.
270 (3) Prior to adjudication the person having custody of the child may
271 give consent to the following:
272 (A) Dental treatment for the child by a licensed dentist;
273 (B) diagnostic examinations of the child, including but not limited to
274 the withdrawal of blood or other body fluids, x-rays and other laboratory
275 examinations;
276 (C) releases and inspections of the child's medical history records;
277 (D) immunizations for the child;
278 (E) administration of lawfully prescribed drugs to the child; and
279 (F) examinations of the child including, but not limited to, the with-
280 drawal of blood or other body fluids or tissues, for the purpose of deter-
281 mining the child's parentage.
282 (4) When the court has granted legal custody of a child in a disposi-
283 tional hearing to any agency, association or individual, the custodian or
284 an agent designated by the custodian shall have authority to consent to
285 the performance and furnishing of hospital, medical, surgical or dental
286 treatment or procedures or mental psychiatric care or treatment other
287 than inpatient treatment at a state psychiatric hospital, including the re-
288 lease and inspection of medical or hospital records, subject to terms and
289 conditions the court considers proper.
290 (5) If a child is already in the custody of the secretary, the secretary
291 may consent to the mental psychiatric care and treatment of the child,
292 without court approval, so long as such care and treatment do does not
293 include inpatient treatment at a state psychiatric hospital.
294 (6) Any health care provider who in good faith renders hospital, med-
295 ical, surgical, mental psychiatric or dental care or treatment to any child
296 after a consent has been obtained as authorized by this section shall not
297 be liable in any civil or criminal action for failure to obtain consent of a
298 parent.
299 (7) Nothing in this section shall be construed to mean that any person
300 shall be relieved of legal responsibility to provide care and support for a
301 child.
302 (b) Mental Psychiatric care and treatment requiring court action. If
303 it is brought to the court's attention, while the court is exercising juris-
304 diction over the person of a child under this code, that the child may be
305 a mentally ill person as defined in K.S.A. 1998 Supp. 59-2946 and amend-
306 ments thereto, the court may:
307 (1) Direct or authorize the county or district attorney or the person
308 supplying the information to file the petition provided for in K.S.A. 1998
309 Supp. 59-2957 and amendments thereto and proceed to hear and deter-
310 mine the issues raised by the application as provided in the care and
311 treatment act for mentally ill persons; or
312 (2) authorize that the child seek voluntary admission to a treatment
313 facility as provided in K.S.A. 1998 Supp. 59-2949 and amendments
314 thereto.
315 The application A petition to determine whether the child is a mentally
316 ill person may be filed in the same proceedings as the petition alleging
317 the child to be a child in need of care, or may be brought in separate
318 proceedings. In either event the court may enter an order staying any
319 further proceedings under this code until all proceedings have been con-
320 cluded under the care and treatment act for mentally ill persons.
321 Sec. 8. K.S.A. 38-1514 is hereby amended to read as follows: 38-
322 1514. (a) Of child. (1) Psychological or emotional. During proceedings
323 under this code, the court, on its own motion or the motion of the guard-
324 ian ad litem for the child, may order an evaluation and written report of
325 the psychological or emotional development or needs of a child who is
326 the subject of the proceedings. The court may refer the child to a state
327 institution for the evaluation if the secretary advises the court that the
328 facility is a suitable place to care for, treat or evaluate the child and that
329 space is available any appropriate professional, state, county or private
330 facility for this evaluation, except that the court shall not refer the child
331 to a state psychiatric hospital, unless a written statement from a qualified
332 mental health professional, as defined in K.S.A. 59-2946, and amendments
333 thereto, authorizing such referral to a state psychiatric hospital has been
334 filed with the court. The expenses of transportation to and from the state
335 facility may be paid as a part of the expenses of temporary care and
336 custody. The child may be referred to a mental health center or qualified
337 professional for evaluation and the expenses of the evaluation may be
338 considered as expenses of the proceedings and assessed as provided in
339 this code. If the court orders an evaluation as provided in this section, a
340 parent of the child shall have the right to obtain an independent evalua-
341 tion at the expense of the parent.
342 (2) Medical. During proceedings under this code, the court may or-
343 der an examination and report of the medical condition and needs of a
344 child who is the subject of the proceedings. The court may also order a
345 report from any physician who has been attending the child stating the
346 diagnosis, condition and treatment afforded the child.
347 (3) Educational. The court may order the chief administrative officer
348 of the school which the child attends or attended to provide to the court
349 information that is readily available which the school officials believe
350 would properly indicate the educational needs of the child. The order
351 may direct that the school conduct an educational needs assessment of
352 the child and send a report of the assessment to the court. The educa-
353 tional needs assessment may include a meeting involving any of the fol-
354 lowing: The child's parents, the child's teachers, the school psychologist,
355 a school special services representative, a representative of the secretary,
356 the child's C.A.S.A., the child's foster parents or legal guardian, a court
357 services officer, and other persons that the chief administrative officer of
358 the school or the officer's designee considers appropriate.
359 (b) Of parent or custodian. (1) Physical, psychological or emotional.
360 During proceedings under this code, the court may order an examination,
361 evaluation and report of the physical, mental or emotional status or needs
362 of a parent or any other relative being considered as one to whom the
363 court may grant custody. Written reports and other materials relating to
364 the examination and evaluation may be considered by the court but, if
365 requested by any interested party in attendance, the court shall require
366 the person preparing the report or other material to appear and testify.
367 (2) Parenting skills. At any dispositional hearing, the court may re-
368 ceive and consider written reports from any physician or qualified person
369 concerning the parenting skills or ability to provide for the physical, men-
370 tal or emotional needs and future development of a child by a parent or
371 other relative being considered for custody. If requested by any interested
372 party in attendance at the dispositional hearing, the court shall require
373 the person preparing the report to appear and testify.
374 (c) Confidentiality of reports. (1) Reports of court ordered examina-
375 tion or evaluation. No confidential relationship of physician and patient,
376 psychologist and client or social worker and client shall arise from an
377 examination or evaluation ordered by the court.
378 (2) Report from private physician, psychologist or therapist. When
379 any interested party to proceedings under this code wishes the court to
380 have the benefit of information or opinion from a physician, psychologist,
381 registered marriage and family therapist or social worker with whom there
382 is a confidential relationship, the interested party may waive the confi-
383 dential relationship but restrict the information to be furnished or testi-
384 mony to be given to those matters material to the issues before the court.
385 If requested, the court may make an in camera examination of the pro-
386 posed witness or the file of the proposed witness and excise any matters
387 that are not material to the issues before the court.
388 Sec. 9. K.S.A. 1998 Supp. 38-1614 is hereby amended to read as
389 follows: 38-1614. (a) Physical care and treatment. (1) When the health or
390 condition of a juvenile who is subject to the jurisdiction of the court
391 requires it, the court may consent to the performing and furnishing of
392 hospital, medical, surgical or dental treatment or procedures including
393 the release and inspection of medical or dental records.
394 (2) When the health or condition of a juvenile requires it and the
395 juvenile has been placed in the custody of a person other than a parent
396 or placed in or committed to a facility, the custodian or an agent desig-
397 nated by the custodian shall have authority to consent to the performance
398 and furnishing of hospital, medical, surgical or dental treatment or pro-
399 cedures including the release and inspection of medical or dental records,
400 subject to terms and conditions the court considers proper. The provi-
401 sions of this subsection shall also apply to juvenile felons, as defined in
402 K.S.A. 38-16,112, prior to its repeal, who have been placed in a juvenile
403 correctional facility pursuant to K.S.A. 75-5206, and amendments thereto.
404 (3) Any health care provider, who in good faith renders hospital, med-
405 ical, surgical or dental care or treatment to any juvenile after a consent
406 has been obtained as authorized by this section, shall not be liable in any
407 civil or criminal action for failure to obtain consent of a parent.
408 (4) Nothing in this section shall be construed to mean that any person
409 shall be relieved of legal responsibility to provide care and support for a
410 juvenile.
411 (b) Mental Psychiatric care and treatment. If (1) As part of any dis-
412 positional order entered pursuant to K.S.A. 38-1663, and amendments
413 thereto, the court may consent to, or provide for the giving of consent to,
414 psychiatric care and treatment other than inpatient care and treatment
415 at a state psychiatric hospital.
416 (2) If at any time it is brought to the court's attention, while the court
417 is exercising jurisdiction over the person of a juvenile under this code,
418 that the juvenile may be a mentally ill person as defined in K.S.A. 1998
419 Supp. 59-2946 and amendments thereto, the court may:
420 (1) (A) Direct or authorize the county or district attorney or the per-
421 son supplying the information to file the petition provided for in K.S.A.
422 1998 Supp. 59-2957 and amendments thereto, and proceed to hear and
423 determine the issues raised by the application as provided in the care and
424 treatment act for mentally ill persons; or
425 (2) (B) authorize that the juvenile seek voluntary admission to a treat-
426 ment facility as provided in K.S.A. 1998 Supp. 59-2949 and amendments
427 thereto.
428 The application to determine whether the juvenile is a mentally ill
429 person may be filed in the same proceedings as the petition alleging the
430 juvenile to be a juvenile offender or may be brought in separate pro-
431 ceedings. In either event, the court may enter an order staying any further
432 proceedings under this code until all proceedings have been concluded
433 under the care and treatment act for mentally ill persons.
434 Sec. 10. K.S.A. 1998 Supp. 38-1637 is hereby amended to read as
435 follows: 38-1637. (a) For the purpose of this section, a respondent is
436 incompetent for hearing when charged as a juvenile offender and, be-
437 cause of mental illness or defect, is unable:
438 (1) To understand the nature and purpose of the proceedings; or
439 (2) to make or assist in making a defense.
440 (b) Whenever the words "competent," "competency," "incompetent"
441 and "incompetency" are used without qualification in this code, they shall
442 refer to the respondent's competency or incompetency, as described in
443 subsection (a).
444 (c) (1) At any time after the respondent has been charged with an
445 act which, if the respondent is found to have committed, would result in
446 being adjudged to be a juvenile offender and before trial, the respondent,
447 the respondent's attorney or the county or district attorney may request
448 a determination of the respondent's competency for hearing. If, upon the
449 request of either party or upon one's own knowledge and observation,
450 the judge before whom the case is pending finds that there is reason to
451 believe that the respondent is incompetent for hearing, the proceedings
452 shall be suspended and a hearing conducted to determine the competency
453 of the respondent.
454 (2) All proceedings under this section shall be in the court in which
455 the case is pending. The court shall determine the issue of competency
456 and may order a psychiatric or psychological examination of the respon-
457 dent. To facilitate the examination, the court may: (A) Appoint two qual-
458 ified licensed physicians or licensed psychologists, or one of each to ex-
459 amine the respondent or (B) designate a private psychiatric or
460 psychological facility or public mental health center to conduct the ex-
461 amination and report to the court. If either physician or psychologist, the
462 private psychiatric facility or the public mental health center determines
463 that further examination is necessary, the court may commit the respon-
464 dent for not more than 60 days to any appropriate state, county or private
465 institution facility for examination and appropriate report to the court,
466 except that the court shall not commit the respondent to a state psychiatric
467 hospital, unless a written statement from a qualified mental health pro-
468 fessional, as defined in K.S.A. 59-2946, and amendments thereto, author-
469 izing such admission to a state psychiatric hospital has been filed with
470 the court. For good cause shown, the commitment may be extended for
471 another 60 days. No statement made by the respondent in the course of
472 any examination provided for by this section, whether the examination is
473 with or without the consent of the respondent, shall be admitted in evi-
474 dence against the respondent in any hearing.
475 (3) If the respondent is found to be competent, the proceedings
476 which have been suspended shall be resumed.
477 (4) If the respondent is found to be incompetent, the respondent
478 shall be committed for treatment pursuant to K.S.A. 38-1638, and amend-
479 ments thereto, and shall remain subject to the further order of the court.
480 (5) The respondent shall be present personally at all proceedings un-
481 der this section.
482 (6) A respondent who is found to be incompetent shall be committed
483 for treatment to any appropriate state, county or private institution during
484 the continuance of that condition. One or both parents of the respondent
485 may be ordered to pay child support during the time the respondent is
486 receiving treatment. Upon application of the respondent and in the dis-
487 cretion of the court, the respondent may be released to any appropriate
488 private institution for treatment upon terms and conditions prescribed by
489 the court.
490 (7) When reasonable grounds exist to believe that a respondent who
491 has been adjudged incompetent is now competent, the court in which
492 the case is pending shall conduct a hearing to determine the respondent's
493 present mental condition. Reasonable notice of the hearings shall be given
494 to the county or district attorney, the respondent and the respondent's
495 attorney of record, if any. If the court, following the hearing, finds the
496 respondent to be competent, the proceedings pending against the re-
497 spondent shall be resumed.
498 Sec. 11. K.S.A. 1998 Supp. 38-1638 is hereby amended to read as
499 follows: 38-1638. (a) A respondent who is found to be incompetent for
500 hearing shall be committed for evaluation and treatment to any appro-
501 priate state, county or private institution facility for a period of not to
502 exceed 90 days, except that the court shall not commit the respondent to
503 a state psychiatric hospital, unless a written statement from a qualified
504 mental health professional, as defined in K.S.A. 59-2946, and amendments
505 thereto, authorizing such admission to a state psychiatric hospital has
506 been filed with the court. Within 90 days of the respondent's commitment
507 to the institution, the chief medical officer of the institution facility shall
508 certify to the court whether the respondent has a substantial probability
509 of attaining competency for hearing in the foreseeable future. If the prob-
510 ability does exist, the court shall order the respondent to remain in an
511 that facility or another appropriate state, county or private institution
512 facility until the respondent attains competency for hearing or for a period
513 of six months from the date of the original commitment, whichever occurs
514 first, except that the court shall at no time commit the respondent to a
515 state psychiatric hospital, unless a written statement from a qualified men-
516 tal health professional, as defined in K.S.A. 59-2946, and amendments
517 thereto, authorizing such admission to a state psychiatric hospital has
518 been filed with the court. If the probability does not exist, the court shall
519 order the secretary of social and rehabilitation services to commence in-
520 voluntary commitment proceedings pursuant to article 29 of chapter 59
521 of the Kansas Statutes Annotated.
522 (b) If a respondent who was found to have a substantial probability
523 of attaining competency for hearing, as provided in subsection (a), has
524 not attained competency for hearing within six months from the date of
525 the original commitment, the court shall order the secretary of social and
526 rehabilitation services to commence involuntary commitment proceed-
527 ings pursuant to article 29 of chapter 59 of the Kansas Statutes Annotated.
528 (c) When reasonable grounds exist to believe that a respondent who
529 has been adjudged incompetent for hearing is competent, the court in
530 which the case is pending shall conduct a hearing in accordance with
531 K.S.A. 38-1637, and amendments thereto, to determine the respondent's
532 present mental condition. Reasonable notice of the hearing shall be given
533 to the prosecuting attorney, the respondent and the respondent's attorney
534 of record, if any. If the court, following the hearing, finds the respondent
535 to be competent, the proceedings pending against the respondent shall
536 be resumed.
537 Sec. 12. K.S.A. 1998 Supp. 38-1639 is hereby amended to read as
538 follows: 38-1639. (a) Whenever involuntary commitment proceedings
539 have been commenced by the secretary of social and rehabilitation serv-
540 ices as required by K.S.A. 38-1638, and amendments thereto, and the
541 respondent is not committed to a treatment facility as a patient, the re-
542 spondent shall remain in the institution facility where committed pur-
543 suant to K.S.A. 38-1638, and amendments thereto, until further order of
544 the court. The secretary of social and rehabilitation services shall promptly
545 notify the court in which the proceedings are pending and the commis-
546 sioner of the result of the involuntary commitment proceedings. The
547 court shall then proceed pursuant to subsection (c).
548 (b) Whenever involuntary commitment proceedings have been com-
549 menced by the secretary of social and rehabilitation services as required
550 by K.S.A. 38-1638, and amendments thereto, and the respondent is com-
551 mitted to a treatment facility as a patient but thereafter is to be discharged
552 pursuant to article 29 of chapter 59 of the Kansas Statutes Annotated,
553 the respondent shall remain in the institution facility where committed
554 pursuant to K.S.A. 38-1638, and amendments thereto, until further order
555 of the court. The head of the treatment facility shall promptly notify the
556 court in which the proceedings are pending that the respondent is to be
557 discharged. The court shall then proceed pursuant to subsection (c).
558 (c) Within five days after receiving notice pursuant to subsection (a)
559 or (b), the court shall order the respondent to be discharged from com-
560 mitment and shall dismiss without prejudice the charges against the re-
561 spondent. The period of limitation for the prosecution for the crime
562 charged shall not continue to run until the respondent has been deter-
563 mined to have attained competency.
564 Sec. 13. K.S.A. 1998 Supp. 38-1662 is hereby amended to read as
565 follows: 38-1662. (a) Psychological or emotional. Following the juvenile
566 being adjudged to be a juvenile offender under this code the court may
567 order an evaluation and written report of the psychological or emotional
568 development or needs of the juvenile offender. The juvenile offender may
569 be referred to a mental health center or a qualified professional for the
570 evaluation, and the any appropriate professional, county, state or private
571 facility for this evaluation, except that the court shall not refer the juvenile
572 offender to a state psychiatric hospital, unless a written statement from a
573 qualified mental health professional, as defined in K.S.A. 59-2946, and
574 amendments thereto, authorizing such referral to a state psychiatric hos-
575 pital has been filed with the court. The expenses of the evaluation may
576 be considered as expenses of the proceedings and assessed as provided
577 in this code. If the court orders an evaluation as provided in this section,
578 a parent of the juvenile offender shall have the right to obtain an inde-
579 pendent evaluation at the expense of the parent.
580 (b) Medical. Following the juvenile being adjudged to be a juvenile
581 offender under this code, the court may order an examination and report
582 of the medical condition and needs of the juvenile offender who is the
583 subject of the proceedings. The court may also order a report from any
584 physician who has been attending the juvenile offender stating the diag-
585 nosis, condition and treatment afforded the juvenile offender.
586 (c) Educational. The court may order the chief administrative officer
587 of the school which the juvenile offender attends or attended to provide
588 to the court information that is readily available which the school officials
589 feel would properly indicate the educational needs of the juvenile of-
590 fender. The order may direct that the school conduct an educational
591 needs assessment of the juvenile offender and send a report thereof to
592 the court. The educational needs assessment may include a meeting in-
593 volving any of the following: (1) The juvenile offender's parents, (2) the
594 juvenile offender's teacher or teachers, (3) the school psychologist, (4) a
595 school special services representative, (5) a representative of the com-
596 missioner, (6) the juvenile offender's C.A.S.A., (7) the juvenile offender's
597 foster parents or legal guardian and (8) other persons that the chief ad-
598 ministrative officer of the school, or the officer's designee, deems
599 appropriate.
600 Sec. 14. K.S.A. 22-3302, 22-3303, 22-3429, 22-3430, 22-3431 and 38-
601 1514 and K.S.A. 1998 Supp. 22-3305, 38-1513, 38-1614, 38-1637, 38-
602 1638, 38-1639 and 38-1662 are hereby repealed.
603 Sec. 15. This act shall take effect and be in force from and after its
604 publication in the statute book.