2016 South Carolina Code of Laws
Title 44 - Health
CHAPTER 23 - PROVISIONS APPLICABLE TO BOTH MENTALLY ILL PERSONS AND PERSONS OF INTELLECTUAL DISABILITIES
Section 44-23-410. Determining fitness to stand trial; time for conducting examination; extension; independent examination; competency distinguished.

(A) Whenever a judge of the circuit court or family court has reason to believe that a person on trial before him, charged with the commission of a criminal offense or civil contempt, is not fit to stand trial because the person lacks the capacity to understand the proceedings against him or to assist in his own defense as a result of a lack of mental capacity, the judge shall:

(1) order examination of the person by two examiners designated by the Department of Mental Health if the person is suspected of having a mental illness or designated by the Department of Disabilities and Special Needs if the person is suspected of having intellectual disability or having a related disability or by both sets of examiners if the person is suspected of having both mental illness and intellectual disability or a related disability. The examination must be made within thirty days after the receipt of the court's order and may be conducted in any suitable place unless otherwise designated by the court; or

(2) order the person committed for examination and observation to an appropriate facility of the Department of Mental Health or the Department of Disabilities and Special Needs for a period not to exceed fifteen days.

(B) Before the expiration of the examination period or the examination and observation period, the Department of Mental Health or the Department of Disabilities and Special Needs, as appropriate, may apply to a judge designated by the Chief Justice of the South Carolina Supreme Court for an extension of time up to fifteen days to complete the examination or the examination and observation.

(C) If the person or the person's counsel requests, the court may authorize the person to be examined additionally by a designated examiner of the person's choice. However, the court may prescribe the time and conditions under which the independent examination is conducted.

(D) If the examiners designated by the Department of Mental Health find indications of intellectual disability or a related disability but not mental illness, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person is "not mentally ill" and recommend that the person should be evaluated for competency to stand trial by the Department of Disabilities and Special Needs. If the examiners designated by the Department of Disabilities and Special Needs find indications of mental illness but not intellectual disability or a related disability, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person does "not have intellectual disability or a related disability" and recommend that the person should be evaluated for competency to stand trial by the Department of Mental Health. If either the Department of Mental Health or the Department of Disabilities and Special Needs finds a preliminary indication of a dual diagnosis of mental illness and intellectual disability or a related disability, this preliminary finding must be reported to the court with the recommendation that one examiner from the Department of Mental Health and one examiner from the Department of Disabilities and Special Needs be designated to further evaluate the person and render a final report on the person's mental capacity.

HISTORY: 1962 Code Section 32-977; 1974 (58) 2642; 1990 Act No. 419, Section 1; 1990 Act No. 431, Section 1; 1993 Act No. 181, Section 1086; 2006 Act No. 400, Section 1, eff September 29, 2006; 2011 Act No. 47, Section 5, eff June 7, 2011.

Editor's Note

2011 Act No. 47, Section 13, provides as follows:

"SECTION 13. In Sections 1 through 6 of this act, the terms 'intellectual disability' and 'person with intellectual disability' have replaced and have the same meanings as the former terms 'mental retardation' and 'mentally retarded'."

Effect of Amendment

The 2006 amendment designated subsection (A); in subparagraph (A)(1), created the second sentence and substituted "thirty" for "fifteen" days; in subparagraph (A)(2), deleted all but the first sentence; and added subsections (B) to (D).

The 2011 amendment substituted "having intellectual disability" for "being mentally retarded" in subsection (A)(1), and substituted "intellectual disability" for "mental retardation" once in subsection (A)(1) and throughout subsection (D).