46-14-221. Determination of fitness to proceed -- procedure on finding of unfitness -- expenses -- involuntary treatment -- rulemaking authority. (1) (a) When the issue of the defendant's fitness to proceed is raised, and an examination of the defendant has been completed under 46-14-202, the defendant's fitness must be determined by the court.

(b) If neither the prosecutor nor the defendant's counsel contests the finding of the report filed under 46-14-206, the court may make the determination on the basis of the report.

(c) If the finding is contested, the court shall hold a hearing on the issue. If the report is received in evidence upon the hearing, the parties have the right to subpoena and cross-examine the psychiatrists or licensed clinical psychologists who joined in the report and to offer evidence upon the issue.

(d) Except as provided in 46-14-206(2), in determining whether a defendant lacks fitness to proceed, the court shall restrict its analysis of the issues to:

(i) whether the defendant suffers from a mental disorder, as defined in 53-21-102, or is seriously developmentally disabled, as defined in 53-20-102;

(ii) whether the defendant may require commitment; and

(iii) if the defendant suffers from a mental disease or disorder or developmental disability, whether the defendant has the capacity to understand the proceedings against the defendant and to assist in the defendant's own defense.

(2) (a) If the court determines that the defendant lacks fitness to proceed, the proceeding against the defendant must be suspended, except as provided in subsection (4), and the court shall commit the defendant to an appropriate mental health facility, as defined in 53-21-102, or residential facility, as defined in 53-20-102, or to the custody of the director of the department of public health and human services for so long as the unfitness endures or until disposition of the defendant is made pursuant to this section, whichever occurs first.

(b) The court may not commit the defendant to a private mental health facility or hospital without the express consent of the facility or hospital.

(3) (a) The committing court shall, after receiving notice from the department of public health and human services to the court, the defendant or the defendant's counsel, and county attorney that a defendant committed to the Montana state hospital for a fitness evaluation under 46-14-202 or restoration to fitness under 46-14-221 has been determined to be fit or restored to fitness, order the defendant to be returned to the committing county and set the matter for trial. The committing court shall also, for any incarcerated defendant, within 90 days of ordering commitment, review the defendant's status related to a commitment ordered under subsection (2). If the court finds that the defendant has not been admitted to an appropriate mental health facility, residential facility, or to the custody of the director of the department of public health and human services under subsection (2) and is still unfit to proceed because the defendant has a mental disorder or mental illness, the court shall assess whether the proceeding against the defendant must be dismissed or whether alternatives to incarceration, if applicable, or to commitment are appropriate under the circumstances, including whether the involuntary administration of medication is necessary.

(b) (i) If, on review of the defendant's custodial status related to any commitment ordered pursuant to subsection (2), it is determined that an incarcerated defendant requires treatment, including administration of medication, the county attorney may petition the court for an order requiring compliance with treatment, including involuntary administration of medication.

(ii) The defendant has a right to a hearing on the petition. The judge shall appoint a professional person and set a date and hold the hearing on the petition without undue delay. The court shall enter into the record a detailed statement of the facts upon which an order is made, and if involuntary administration of medication or other treatment is ordered, the court shall also enter into the record the specific findings that the state has proved an overriding justification for the order and that the treatment being ordered is medically appropriate. The court may authorize the chief medical officer of a facility or a physician, or the chief medical officer of the department of public health and human services or a physician or advanced practice registered nurse who is under the supervision of or employed by the department of public health and human services, to be designated by the court to administer appropriate medication involuntarily. The department may contract with qualified providers to facilitate treatment within an incarcerative or custodial setting.

(c) (i) On admission to an appropriate mental health facility, residential facility, or to the custody of the director of the department of public health and human services under subsection (2), the facility shall evaluate the defendant and develop an individualized treatment plan to assist the defendant to gain or regain fitness to proceed. The treatment plan may include a physician's prescription of reasonable and appropriate medication that is consistent with accepted medical standards.

(ii) If the defendant refuses to comply with the treatment plan, the facility may involuntarily administer medications to treat a defendant pursuant to the determination of the facility's treatment review committee and involuntary medication review board, if the following criteria are met:

(A) the defendant suffers from a mental illness or mental disorder;

(B) the defendant has been determined to lack fitness to proceed;

(C) the involuntary administration of medication is in the best medical interests of the defendant;

(D) the defendant is either gravely disabled or poses a likelihood of serious harm to self or others;

(E) the facility has established a treatment review committee and an involuntary medication review board for the involuntary administration of psychotropic medications; and

(F) the policies and procedures relating to the involuntary medication review board require provision to the defendant of a notice of rights and notice of an involuntary medication hearing, an involuntary medication hearing, and an appeal process.

(d) The department of public health and human services shall adopt rules governing treatment review and involuntary administration of medication by a mental health facility, as defined in 53-21-102, a residential facility, as defined in 53-20-102, or the Montana state hospital.

(e) After the initial review of the defendant's custodial status under subsection (3)(a), the court shall review the defendant's custodial status every 30 days or at an interval the court determines appropriate under the circumstances. If on subsequent review the defendant is still unfit, it does not appear that the defendant will become fit within the reasonably foreseeable future, and that alternatives to forensic commitment are not appropriate under the circumstances, the court shall order the proceeding against the defendant dismissed without prejudice and the prosecutor may petition the court in the manner provided in Title 53, chapter 21, to determine the disposition of the defendant pursuant to those provisions.

(f) If the court determines that the defendant lacks fitness to proceed because the defendant has a developmental disability as defined in 53-20-102, the proceeding against the defendant must be dismissed and the prosecutor shall petition the court in the manner provided in Title 53, chapter 20, to determine the disposition of the defendant pursuant to those provisions.

(4) The fact that the defendant is unfit to proceed does not preclude any legal objection to the prosecution that is susceptible to fair determination prior to trial and that is made without the personal participation of the defendant.

(5) Except as provided in subsection (6), the expenses of transporting the defendant to the custody of the director of the department of public health and human services to be placed in an appropriate facility of the department of public health and human services, of the care, custody, and treatment of the defendant at the facility, and of transporting the defendant back are payable by the court or, in district court proceedings, by the office of court administrator.

(6) The cost of care, custody, and treatment at a facility 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.