29-3701. Verdict of acquittal; probable cause hearing; finding; referral or confinement; evaluations; conditions of confinement; order; preparation of treatment plan; contents.

(1) Following receipt of a verdict of acquittal on grounds of insanity, the court shall forthwith conduct a hearing to determine whether there is probable cause to believe the person is dangerous to himself, herself, or others by reason of mental illness or defect or will be so dangerous in the foreseeable future, as demonstrated by omissions, threats, or overt acts. In making this determination the court shall consider all evidence adduced at trial and all additional relevant evidence. If the court finds probable cause it shall order an evaluation not to exceed ninety days in length of the person's mental condition and a treatment plan pursuant to subsection (4) of this section. The evaluation of the person may be conducted as an outpatient at a regional center or other appropriate facility if the court finds by clear and convincing evidence that the person poses no current danger to society at the time of the probable cause hearing and will not become a danger to society during the evaluation period. Otherwise the evaluation of the person shall be conducted as an inpatient at a locked and secure regional center facility or other appropriate locked and secure facility. When the court orders such an inpatient evaluation, the court shall specify in a detailed written order all conditions of the person's confinement during the evaluation and under what, if any, circumstances the person may leave the locked and secure facility. The written order specifying the conditions of confinement shall include a finding by the court that any freedom of movement accorded the person outside a locked and secure facility is consistent with the safety of the public.

(2) The superintendent of the regional center or the director of the facility to which the person has been referred or confined for evaluation shall be responsible for supervising the evaluation and the preparation of an individualized treatment plan.

(3) The report of the evaluation shall address the following to the extent that the available information allows: (a) The person's psychological condition at the time of the evaluation; (b) the probable course of development of the person's condition, with special attention to the probable relationship between the person's current condition and the person's condition at the time of any omissions, threats, or overt acts establishing dangerousness, including the crime for which he or she was acquitted on grounds of insanity; (c) the probable relationship, if any, between the previous omissions, threats, or overt acts establishing dangerousness and the person's condition at the time of the omissions, threats, or overt acts; and (d) the prognosis for change in the person's condition in light of available treatment.

(4) The individualized treatment plan shall contain a statement of the nature of the specific mental and physical problems and needs of the person, a statement of the least restrictive treatment conditions necessary to achieve the purposes of the plan, a statement of the least restrictive treatment conditions consistent with the safety of the public, and a description of intermediate and long-range treatment goals and a projected timetable for their attainment.

(5) Such evaluation and treatment plan shall include the facts upon which conclusions stated therein are based and shall be received by the court at least ten days prior to the expiration of the evaluation period. Copies of the evaluation and treatment plan shall be furnished to the prosecuting attorney and to the person.

(6) If the person desires a separate evaluation, he or she may file a motion with the court requesting an evaluation by one or more qualified experts of his or her choice. Such evaluation shall be at the person's expense unless otherwise ordered by the court. Any such expert evaluating a person pursuant to this subsection shall have access to the person's records at his or her place of confinement. The court may extend the person's referral or confinement for an additional period not to exceed sixty days, if necessary to permit completion of the separate evaluation. The evaluation shall include the facts upon which conclusions stated therein are based and shall be received by the court at least ten days prior to the expiration of the evaluation period. A copy of such evaluation shall be furnished the prosecuting attorney.

Source

Annotations

Under subsection (1) of this section, the definition of mentally ill dangerous persons in the Nebraska Mental Health Commitment Act and the statutes governing persons acquitted of a crime on grounds of insanity are constitutional and do not violate equal protection guarantees. Tulloch v. State, 237 Neb. 138, 465 N.W.2d 448 (1991).

Under subsection (6) of this section, an indigent who is acquitted of a crime on grounds of insanity may obtain an independent evaluation upon the individual's motion. Tulloch v. State, 237 Neb. 138, 465 N.W.2d 448 (1991).

In a hearing concerning an evaluation and treatment plan in a commitment proceeding, a report by a doctor did not constitute inadmissible hearsay. State v. Hayden, 233 Neb. 211, 444 N.W.2d 317 (1989).

The time limits set forth in this section and section 29-3702 are directory, not mandatory, and dismissal of the proceedings is not a proper remedy for a nonprejudicial violation of this section and section 29-3702. State v. Hayden, 233 Neb. 211, 444 N.W.2d 317 (1989).

The provisions of this section and section 29-3702 which set out the time in which the patient is to be provided a hearing and the report of the hospital is to be provided to the court do not relate to the essence of the statutes but govern the time or manner of performance of the thing to be done and are directory as opposed to mandatory. State v. Steele, 224 Neb. 476, 399 N.W.2d 267 (1987).

The Supreme Court will not interfere on appeal with a final order made by the district court in a mental health commitment proceeding unless the court can say as a matter of law that the order is not supported by clear and convincing proof. State v. Mayfield, 212 Neb. 724, 325 N.W.2d 162 (1982).