46-14-202. Examination of defendant -- commitment procedures for examination of fitness -- expenses. (1) If the issue of a defendant's fitness to proceed is raised by the court, the prosecution, or the defendant, or if the defense counsel files a written motion requesting an examination of the defendant, the court shall appoint at least one qualified psychiatrist, licensed clinical psychologist, or advanced practice registered nurse to examine and report upon the defendant's mental condition.

(2) (a) Except as provided in subsection (6), a court may order the defendant to be committed to a hospital, another suitable facility, or the Montana state hospital for the purpose of the examination for a period not exceeding 60 days or a longer period that the court determines to be necessary for the purpose and may direct that a qualified psychiatrist, licensed clinical psychologist, or advanced practice registered nurse retained by the defendant be permitted to witness and participate in the examination.

(b) On commitment to the Montana state hospital, the superintendent of the hospital shall designate at least one qualified psychiatrist, licensed clinical psychologist, or advanced practice registered nurse, who may be or may include the superintendent, to report on the defendant's mental condition.

(3) Except as provided in 46-14-206(2), a court ordering an examination of a defendant under this section may not require that a report of examination include:

(a) an opinion as to the capacity of the defendant to have a particular state of mind that is an element of the offense charged; or

(b) an opinion as to the capacity of the defendant, because of a mental disease or disorder or development disability, to appreciate the criminality of the defendant's behavior or to conform the defendant's behavior to the requirement of the law.

(4) In the examination, any method may be employed that is accepted by the medical or psychological profession for the examination of those alleged to be suffering from mental disease or disorder.

(5) (a) The costs incurred for an examination ordered under subsection (2) must be paid as follows:

(i) if the issue of the defendant's fitness to proceed was raised by the court or the examination was requested by the prosecution, the cost of the examination and other associated expenses must be paid by the court or, in district court proceedings, by the office of court administrator, except as provided in subsection (5)(a)(iv);

(ii) if the examination was requested by the defendant or the defendant's counsel, the cost of the examination and other associated expenses must be paid by the defendant or, if the defendant was represented by an attorney pursuant to the Montana Public Defender Act, Title 47, chapter 1, by the office of state public defender, except as provided by subsection (5)(a)(iv);

(iii) if the examination was jointly requested by the prosecution and defense counsel or the need for the examination was jointly agreed to by the prosecution and defense, the cost of the examination and other associated expenses must be divided and paid equally by the court or, in district court proceedings, by the office of court administrator, and the defendant or, if the defendant was represented by an attorney assigned pursuant to the Montana Public Defender Act, Title 47, chapter 1, by the office of state public defender, except as provided in subsection (5)(a)(iv);

(iv) any costs for an examination performed by an employee of the department of public health and human services, any other associated expenses at a facility of the department of public health and human services, and any other associated expenses for which the legislature has made a general fund appropriation to the department of public health and human services may not be charged to the office of court administrator or the office of state public defender.

(b) For the purposes of this subsection (5), "other associated expenses" means the following costs incurred in association with the commitment to a hospital or other suitable facility for the purpose of examination, regardless of whether the examination is done at the Montana state hospital or any other facility:

(i) the expenses of transporting the defendant from the place of detention to the place where the examination is performed and returning the defendant to detention, including personnel costs of the law enforcement agency by whom the defendant is detained;

(ii) housing expenses of the facility where the examination is performed; and

(iii) medical costs, including medical and dental care, including costs of medication.

(6) A court may not order the superintendent of the Montana state hospital to designate a qualified psychiatrist, licensed clinical psychologist, or advanced practice registered nurse to examine or report on the defendant's mental condition unless there is no person located within the county of venue of the committing court who is willing, able, or available to perform an examination.