34 | 27 | | |
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35 | 28 | | ENGROSSED SENATE |
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36 | 29 | | BILL NO. 497 By: Weaver of the Senate |
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37 | 30 | | |
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38 | 31 | | and |
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39 | 32 | | |
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40 | 33 | | Turner of the House |
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41 | 34 | | |
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42 | 35 | | |
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43 | 36 | | |
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44 | 37 | | |
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45 | 38 | | An Act relating to criminal procedure; amending 22 |
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46 | 39 | | O.S. 2021, Section 1161, which relates to acts |
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47 | 40 | | committed by persons with mental illness or mental |
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48 | 41 | | defect; requiring Forensic Review Board to provide |
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49 | 42 | | certain notice to district attorney; updating |
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50 | 43 | | statutory language; and providing an effective date . |
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51 | 44 | | |
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52 | 45 | | |
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53 | 46 | | |
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54 | 47 | | |
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55 | 48 | | BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA: |
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56 | 49 | | SECTION 1. AMENDATORY 22 O.S. 2021, Sec tion 1161, is |
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57 | 50 | | amended to read as follows: |
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58 | 51 | | Section 1161. A. 1. An act committed by a person in a state |
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59 | 52 | | of mental illness or mental defect shall be adjudicated as guilty |
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60 | 53 | | with mental defect or as not guilty by reason of mental illness. |
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61 | 54 | | 2. If a person is f ound guilty with mental defect or enters a |
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62 | 55 | | plea of guilty with mental defect which is accepted by the court, |
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63 | 56 | | the court at the time o f sentencing shall impose any sentence that |
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64 | 57 | | could be imposed by law upon a person who is convicted of the same |
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96 | 88 | | provided by law, the court shall immediately issue an order for the |
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97 | 89 | | person to be examined by the Department of Mental Health and |
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98 | 90 | | Substance Abuse Services . The time and place of such examination |
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99 | 91 | | shall be determined by the Department. Within forty -five (45) days, |
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100 | 92 | | the Department shall provide to the court a recommendation of |
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101 | 93 | | treatment for the person, which shall be made a condition of |
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102 | 94 | | probation. Reports as specified by the trial judge shall be filed |
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103 | 95 | | with the probation officer and the sentencing court. Failure to |
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104 | 96 | | continue treatment, except by agreement with the treating agency and |
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105 | 97 | | the sentencing court, is grounds for revocation of probation. |
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106 | 98 | | Treatment shall be provided by an agency of the Department or, with |
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107 | 99 | | the approval of the sentencing court and at the expense of the |
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108 | 100 | | person, by private agencies, private physicians or other mental |
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109 | 101 | | health personnel. A psychiatric report shall be filed with the |
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110 | 102 | | probation officer and the sentencing court every six (6) months |
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111 | 103 | | during the period of probation. |
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112 | 104 | | 4. When in any criminal action by indi ctment or information, |
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113 | 105 | | the defense of mental illness is raised, but the defendant is not |
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114 | 106 | | acquitted on the ground that the defendant was mentally ill at the |
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115 | 107 | | time of the commission of the crime charged, an issue concerning |
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146 | 137 | | order a new trial or order resentencing without recommendations to |
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147 | 138 | | sentencing. |
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148 | 139 | | 5. When in any criminal action by indictment or information the |
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149 | 140 | | defense of mental illness is interposed either singly or in |
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150 | 141 | | conjunction with some other defense, the jury shall state in the |
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151 | 142 | | verdict, if it is one of acquittal, whether or not the defendant is |
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152 | 143 | | acquitted on the ground of mental illness. When the defendant is |
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153 | 144 | | acquitted on the ground that the defendant was mentally ill at the |
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154 | 145 | | time of the commission of the crime charged, the person shall not be |
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155 | 146 | | discharged from custody until the court has made a determin ation |
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156 | 147 | | that the person is not dangerous to the public peace and safety and |
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157 | 148 | | is a person requiring treatment. |
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158 | 149 | | B. 1. To assist the cou rt in its determination, the court |
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159 | 150 | | shall immediately issue an order for the person to be examined by |
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160 | 151 | | the Department of Menta l Health and Substance Abuse Services at a |
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161 | 152 | | facility the Department has designated to examine and treat forensic |
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162 | 153 | | individuals. Upon the issuance of the order, the sheriff shall |
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163 | 154 | | deliver the person to the designated facility. |
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164 | 155 | | 2. Within forty-five (45) days of the court entering such an |
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165 | 156 | | order, a hearing shall be conducted by the court to ascertain |
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166 | 157 | | whether the person is dangerous to the pu blic peace or safety |
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197 | 187 | | required period of hospitalization , the Department of Mental Health |
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198 | 188 | | and Substance Abuse Services shall have the person examined by two |
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199 | 189 | | qualified psychiatrists or one such psychiatrist and one qualified |
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200 | 190 | | clinical psychologist whose training and experience enable the |
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201 | 191 | | professional to form expert opinions regarding mental illness, |
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202 | 192 | | competency, dangerousness and criminal responsibility. |
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203 | 193 | | C. 1. Each examiner shall , within thirty-five (35) days of |
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204 | 194 | | hospitalization, individually prepare and submit to the court, the |
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205 | 195 | | district attorney and the trial counsel of the person a report of |
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206 | 196 | | the psychiatric examination findings of the person and an evaluation |
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207 | 197 | | concerning whether t he person is dangerous to the public peace or |
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208 | 198 | | safety. |
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209 | 199 | | 2. If the court is dissatisfied with the reports or if a |
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210 | 200 | | disagreement on the issue of mental illness and dangerousness exists |
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211 | 201 | | between the two examiners, the court may designate one or more |
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212 | 202 | | additional examiners and have them submit their findings and |
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213 | 203 | | evaluations as specified in paragraph 1 of this subsection. |
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214 | 204 | | 3. a. Within ten (10) days after the reports are filed, the |
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215 | 205 | | court must conduct a hearing to determine the present |
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216 | 206 | | condition of the person as to the issue of whether: |
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247 | 236 | | (2) if not believed to be dangerous to the public |
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248 | 237 | | peace or safety, the person is in need of |
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249 | 238 | | continued supervision as a resul t of unresolved |
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250 | 239 | | symptoms of mental illness or a history of |
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251 | 240 | | treatment noncompliance. |
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252 | 241 | | b. The district attorney must establish the foregoing by |
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253 | 242 | | a preponderance of the evidence. At this hearing the |
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254 | 243 | | person shall have the assistance of counsel and may |
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255 | 244 | | present independent evidence. |
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256 | 245 | | D. 1. If the court finds that the person is not dangerous to |
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257 | 246 | | the public peace or safety because the person is a person requiring |
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258 | 247 | | treatment and is not in need of continued supervision as a result of |
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259 | 248 | | unresolved symptoms of mental illne ss or a history of treatment |
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260 | 249 | | noncompliance, it shall immediately discharge the person from |
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261 | 250 | | hospitalization. |
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262 | 251 | | 2. If the court finds that the person is dangerous to the |
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263 | 252 | | public peace and safety, it shall commit the person to the custody |
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264 | 253 | | of the Department of M ental Health and Substance Abuse Services. |
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265 | 254 | | The person shall then be subject to discharge pursuant to the |
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266 | 255 | | procedure set forth in thi s section. |
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297 | 285 | | such psychiatric, medical or other therapeutic |
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298 | 286 | | treatment as in its judgment should be administered. |
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299 | 287 | | b. The person shall be subject to discharge or |
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300 | 288 | | conditional release pursuant to the procedures set |
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301 | 289 | | forth in this section. |
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302 | 290 | | E. If at any time the court finds the person is not dangerous |
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303 | 291 | | to the public peace or safety because the person is a pers on |
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304 | 292 | | requiring treatment, but is in need of continued supervision as a |
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305 | 293 | | result of unresolved symptoms of mental illness or a hi story of |
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306 | 294 | | treatment noncompliance, the court may: |
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307 | 295 | | 1. Discharge the person pursuant to the procedure set forth in |
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308 | 296 | | this section; |
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309 | 297 | | 2. Discharge the person, and upon the motion of the court or |
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310 | 298 | | the district attorney commence civil involuntary commitment |
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311 | 299 | | proceedings against the person pursuant to the provisions of Title |
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312 | 300 | | 43A of the Oklahoma Statutes; or |
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313 | 301 | | 3. Order conditional release, as set f orth in subsection F of |
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314 | 302 | | this section. |
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315 | 303 | | F. There is hereby created a Forensic Review Board to be |
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316 | 304 | | composed of seven (7) member s appointed by the Governor with the |
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317 | 305 | | advice and consent of the Senate. The Board members shall serve for |
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348 | 335 | | term ending December 31, 2010, and two shall serve for a term ending |
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349 | 336 | | December 31, 2011. |
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350 | 337 | | 1. The Board shall be composed of: |
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351 | 338 | | a. four licensed mental health professionals with |
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352 | 339 | | experience in treating menta l illness, at least one of |
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353 | 340 | | whom is licensed as a Doctor of Medicine, a Doctor of |
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354 | 341 | | Osteopathy, or a licensed clinical psychologist and |
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355 | 342 | | shall be appointed from a list of seven names |
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356 | 343 | | submitted to the Governor by the Department of Mental |
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357 | 344 | | Health and Substance Ab use Services, |
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358 | 345 | | b. one member who shall be an attorney licensed to |
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359 | 346 | | practice in this state and shall be appointed from a |
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360 | 347 | | list of not less than three names submitted to the |
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361 | 348 | | Governor by the Board of Governors of the Oklahoma Bar |
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362 | 349 | | Association, |
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363 | 350 | | c. one member who shall be a retired judge licensed to |
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364 | 351 | | practice in this state and shall be appointed from a |
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365 | 352 | | list of not less than three names submitted to the |
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366 | 353 | | Governor by the Judicial Nominating Committee, and |
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367 | 354 | | d. one at-large member. |
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398 | 384 | | 2. The Board shall meet as necessary to determine which |
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399 | 385 | | individuals confined with the Department of Mental Health and |
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400 | 386 | | Substance Abuse Services are eligible for therapeutic visits, |
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401 | 387 | | conditional release or discharge and whether the Board wishes to |
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402 | 388 | | make such a recommendation to the court of the county where the |
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403 | 389 | | individual was found not guilty by reason of insanity or not guilty |
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404 | 390 | | by reason of mental illness for those persons adjudicated as such |
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405 | 391 | | upon or after November 1, 2016. |
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406 | 392 | | a. Forensic Review Board m eetings shall not be considered |
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407 | 393 | | subject to the Oklahoma Open Meeting Act and are not |
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408 | 394 | | open to the public. Other than the For ensic Review |
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409 | 395 | | Board members, only the following individuals shall be |
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410 | 396 | | permitted to attend Board meetings: |
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411 | 397 | | (1) the individual the Board is considering for |
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412 | 398 | | therapeutic visits, conditional release or |
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413 | 399 | | discharge, his or her treatment advocate, and |
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414 | 400 | | members of his or her treatment team, |
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415 | 401 | | (2) the Commissioner of Mental Health and Substance |
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416 | 402 | | Abuse Services or designee, |
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417 | 403 | | (3) the Advocate General for the Department of Mental |
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418 | 404 | | Health and Substance Abuse Services or designee, |
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449 | 434 | | (5) any other persons the Board and Commissioner of |
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450 | 435 | | Mental Health and Substance Abuse Services wish |
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451 | 436 | | to be present. |
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452 | 437 | | b. The Department of Mental Health and Substance Abuse |
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453 | 438 | | Services shall provide adminis trative staff to the |
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454 | 439 | | Board to take minutes of meetings and prepare |
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455 | 440 | | necessary documents and correspondence for the Board |
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456 | 441 | | to comply with its duties as set forth in this |
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457 | 442 | | section. The Department of Mental Health and |
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458 | 443 | | Substance Abuse Services shall also transpo rt the |
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459 | 444 | | individuals being reviewed to and from the Board |
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460 | 445 | | meeting site. |
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461 | 446 | | c. The Board shall provide notice to the district |
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462 | 447 | | attorney of the county where the individual was found |
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463 | 448 | | not guilty by reason of mental illness at least forty- |
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464 | 449 | | five (45) days before meeting to determine eligibility |
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465 | 450 | | for therapeutic visits, conditional release, or |
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466 | 451 | | discharge. |
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467 | 452 | | d. The Board shall promulgate rules concerning the |
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468 | 453 | | granting and structure of therapeutic visits, |
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469 | 454 | | conditional releases and discharge. |
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499 | 483 | | provides for progressive tests of the ability of the |
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500 | 484 | | consumer to maintain and demonstrate coping skills. |
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501 | 485 | | 3. The Forensic Review Board shall submit any recommendation |
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502 | 486 | | for therapeutic visi t, conditional release or discharge to the court |
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503 | 487 | | and district attorney of the county where the person was found not |
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504 | 488 | | guilty by reason of mental illness, the trial counsel of the person, |
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505 | 489 | | the Department of Mental Health and Substance Abuse Services and the |
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506 | 490 | | person at least fourteen (14) days prior to the scheduled visit. |
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507 | 491 | | a. The district attorney may file an objection to a |
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508 | 492 | | recommendation for a therapeutic visit within ten (10) |
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509 | 493 | | days of receipt of the notice. |
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510 | 494 | | b. If an objection is filed, the therapeutic visit is |
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511 | 495 | | stayed until a hearing is held. The court shall hold |
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512 | 496 | | a hearing not less than ten (10) days following an |
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513 | 497 | | objection to determine wheth er the therapeutic visit |
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514 | 498 | | is necessary for treatment, and if necessary, the |
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515 | 499 | | nature and extent of the visit. |
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516 | 500 | | 4. During the period of hospitalization , the Department of |
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517 | 501 | | Mental Health and Substance Abuse Services shall submit an annual |
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518 | 502 | | report on the status of the person to the court, the district |
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519 | 503 | | attorney and the patient advocate general of the Department of |
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520 | 504 | | Mental Health and Subs tance Abuse Services. |
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550 | 533 | | Review Board, the court shall conduct a hearing to ascertain if the |
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551 | 534 | | person is dangerous and a person requiring trea tment. This hearing |
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552 | 535 | | shall be conducted under the same procedure as the first hearing and |
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553 | 536 | | must occur not less than ten (10) days following the motion or |
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554 | 537 | | request by the Forensic Review Board. |
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555 | 538 | | 1. If the court determines that the person continues to be |
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556 | 539 | | dangerous to the public peace and safety because the person is a |
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557 | 540 | | person requiring treatment, it shall order the return of the person |
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558 | 541 | | to the hospital for additional treatment. |
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559 | 542 | | 2. If the court determines that the person is not dangerous but |
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560 | 543 | | subject to certain co nditions, the court may conditionally release |
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561 | 544 | | the person subject to the following: |
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562 | 545 | | a. the Forensic Review Board has made a recommendation |
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563 | 546 | | for conditional release, including a written plan for |
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564 | 547 | | outpatient treatment and a list of recommendations for |
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565 | 548 | | the court to place as conditions on the release, |
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566 | 549 | | b. in its order of conditional release, the court shall |
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567 | 550 | | specify conditions of release and sh all direct the |
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568 | 551 | | appropriate agencies or persons to submit annual |
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569 | 552 | | reports regarding the compliance of the person with |
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570 | 553 | | the conditions of release and progress in treatment, |
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601 | 583 | | free transmission of all pertinent information, |
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602 | 584 | | including clinical information regarding the person, |
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603 | 585 | | among the Department of Mental Health and Substance |
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604 | 586 | | Abuse Services, the appropriat e community mental |
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605 | 587 | | health centers and the appropriate district attorneys, |
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606 | 588 | | law enforcement and court personnel, |
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607 | 589 | | d. the order of the court placing the person on |
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608 | 590 | | conditional release shall include notice that the |
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609 | 591 | | conditional release of the person may be revoked upon |
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610 | 592 | | good cause. The person placed on conditional release |
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611 | 593 | | shall remain under the supervision of the Department |
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612 | 594 | | of Mental Health and Substance Abuse Services until |
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613 | 595 | | the committing court enters a final discharge order. |
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614 | 596 | | The Department of Mental Health and Substance Abuse |
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615 | 597 | | Services shall assess the person placed on conditional |
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616 | 598 | | release annually and shall have the authority to |
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617 | 599 | | recommend discharge of the person to the Board, and |
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618 | 600 | | e. any agency or individual involved in providing |
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619 | 601 | | treatment with regard to the conditional release plan |
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620 | 602 | | of the person may prepare and file an affidavit under |
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621 | 603 | | oath if the agency or individual believes that the |
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652 | 633 | | (1) Any peace officer who receives such an affidavit |
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653 | 634 | | shall take the person into protective custody and |
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654 | 635 | | return the person to the forensic unit of the |
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655 | 636 | | state hospital. |
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656 | 637 | | (2) A hearing shall be conducted within three (3) |
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657 | 638 | | days, excluding holidays and weekends, after the |
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658 | 639 | | person is returned to the forensic unit of the |
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659 | 640 | | state hospital to determine if the person has |
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660 | 641 | | violated the conditions of release, or if full - |
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661 | 642 | | time hospitalization is the least restrictive |
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662 | 643 | | alternative consistent with the needs of the |
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663 | 644 | | person and the need for public safety. Notice of |
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664 | 645 | | the hearing shall be issued, at least twenty -four |
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665 | 646 | | (24) hours before the hearing , to the hospital |
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666 | 647 | | superintendent, the person, trial counsel for the |
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667 | 648 | | person, and the patient advocate general of the |
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668 | 649 | | Department of Mental Health and Substance Abuse |
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669 | 650 | | Services. If the person requires hospitalization |
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670 | 651 | | because of a violation of the conditions o f |
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671 | 652 | | release or because of progression to the point |
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703 | 683 | | requiring treatment, it shall order that the person be discharged |
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704 | 684 | | from the custody of the Department of Mental Health and Substance |
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705 | 685 | | Abuse Services. |
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706 | 686 | | H. As used in this section: |
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707 | 687 | | 1. “Antisocial personality disorder ” means antisocial |
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708 | 688 | | personality disorder as defined by the Diagnostic and Statistical |
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709 | 689 | | Manual of Mental Disorders, 5th Edition (DSM -5), or subsequent |
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710 | 690 | | editions; |
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711 | 691 | | 2. “Court” or “sentencing court” means the court sitting in the |
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712 | 692 | | county where the person has been found to be not guilty by reason of |
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713 | 693 | | mental illness or guilty with mental defect; |
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714 | 694 | | 3. “Dangerous” means a person who because of mental illness |
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715 | 695 | | poses a substantial risk of physical harm in the near future to |
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716 | 696 | | another person or persons. Dangerousness shall be determined by |
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717 | 697 | | such factors as whet her the person has placed another person or |
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718 | 698 | | persons in a reasonable fear of violent behavior, and medication and |
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719 | 699 | | treatment compliance; |
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720 | 700 | | 4. “Guilty with mental defect ” means the person committed the |
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721 | 701 | | act and was either unable to understand the nature and con sequences |
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722 | 702 | | of his or her actions or was unable to differentiate right from |
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753 | 732 | | 5. “Mental defect” means the person has been diagnosed with |
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754 | 733 | | antisocial personality disorder which substantially contributed to |
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755 | 734 | | the act for which the person has been charged; |
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756 | 735 | | 6. “Mental illness” means a substantial disorder of thought, |
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757 | 736 | | mood, perception, psychological orientation or memor y that |
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758 | 737 | | significantly impairs judgment, behavior, capacity to recognize |
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759 | 738 | | reality or ability to meet the ordinary demands of life; |
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760 | 739 | | 7. “Not guilty by reason of mental illness ” means the person |
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761 | 740 | | committed the act while mentally ill and was either unable to |
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762 | 741 | | understand the nature and consequences of his or her actions or was |
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763 | 742 | | unable to differentiate right from wrong, and has not been diagnosed |
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764 | 743 | | with antisocial personality disorder which substantially contributed |
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765 | 744 | | to the act for which the person has been charged; and |
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766 | 745 | | 8. a. “Person requiring treatment ” means a person who |
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767 | 746 | | because of mental illness: |
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768 | 747 | | (1) poses a substantial risk of physical harm to self |
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769 | 748 | | as manifested by evidence or serious threats of |
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770 | 749 | | or attempts at suicide or other significant self - |
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771 | 750 | | inflicted bodily harm, |
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772 | 751 | | (2) poses a substantial risk of physical harm to |
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773 | 752 | | another person or persons as manifested by |
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803 | 781 | | (3) has placed another person or persons in |
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804 | 782 | | reasonable fear of serious physical harm or |
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805 | 783 | | violent behavior directed toward such person or |
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806 | 784 | | persons as manifested by serious and immediate |
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807 | 785 | | threats, |
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808 | 786 | | (4) is in a condition of severe deterioration such |
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809 | 787 | | that, without immediate intervention, there |
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810 | 788 | | exists a substantial risk that severe impairment |
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811 | 789 | | or injury will result to the person, or |
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812 | 790 | | (5) poses a substantial risk of serious physical |
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813 | 791 | | injury to self or death as manifested by evidence |
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814 | 792 | | that the person is unable to provide for and is |
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815 | 793 | | not providing for his or her basic physical |
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816 | 794 | | needs. |
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817 | 795 | | b. The mental health or substan ce abuse history of the |
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818 | 796 | | person may be used as part of the evidence to |
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819 | 797 | | determine whether the person is a person requiring |
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820 | 798 | | treatment. The mental health or substance abuse |
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821 | 799 | | history of the person shall not be the sole basis for |
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822 | 800 | | this determination. |
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853 | 830 | | (1) a person whose mental processes have been |
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854 | 831 | | weakened or impaired by reason of advanced years, |
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855 | 832 | | dementia or Alzheimer ’s disease, |
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856 | 833 | | (2) a person with intellectual or developmental |
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857 | 834 | | disability as defined in Title 10 of the Oklahoma |
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858 | 835 | | Statutes, |
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859 | 836 | | (3) a person with seizure disorder, or |
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860 | 837 | | (4) a person with a traumatic brain injury. |
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861 | 838 | | I. Proceedings hereunder may be held in conformance with the |
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862 | 839 | | provisions of Section 3006 of Title 20 of the Oklahoma Statutes for |
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863 | 840 | | allowable use of videoconferencing. |
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864 | 841 | | SECTION 2. This act shall become effective November 1, 2025. |
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