SB2, which made changes to the Ohio Revised Code affecting competency restoration, was signed by Governor DeWine in April 2021, and went into effect on Aug.3, 2021. This FAQ will assist in answering questions related to the statutory changes included in SB2.
What are the primary changes in statute affecting competency restoration in SB2?
In SB2, criminal courts may not initially hospitalize a defendant for inpatient competency restoration if they have a nonviolent misdemeanor offense. Instead, the court may choose to dismiss the charges and file an affidavit in probate court for inpatient civil commitment if the individual is severely mentally ill and in need of a hospital
level of care. The court may also place the defendant in the community and refer to an outpatient competency restoration program.
Are there other changes to the competency restoration statute?
Yes, the following additional changes were made:
- SB2 allows competency evaluations to be conducted through electronic means
- Prohibits court from ordering defendant to be held for evaluation unless charged with a felony or offense of violence or court determines defendant is in need of hospitalization based on facts before court
- Requires examiner’s recommendation for least-restrictive environment to include consideration of housing needs and availability of mental health treatment in the community
- Requires court to consider and give preference to availability of housing, outpatient mental health and supportive services in the community when determining place of commitment
- Restricts access to examiner’s reports — filed under seal — limited access allowed for prosecutor and defense counsel, defendant, probate court, mental health professionals involved in subsequent evaluations and treatment; others can apply to the court for consideration of access.
Why were the changes to the statute made?
- Over the past two to three decades, there has been a rise of those with mental illness in jails and a rise in referrals for competency restoration, particularly for misdemeanor offenses.
- This has been a nationwide issue which has hit a crisis point in several other states, leading to exceptionally long wait times for hospital beds and has resulted in lawsuits (ex: Oregon, Louisiana, California, Colorado).
- In Ohio, we have begun to see a crowding out of access for civil patients in regional state psychiatric hospitals due to more forensic referrals and longer lengths of stay.
Won’t this mean that a lot of defendants will return to the streets and be untreated?
No, this bill affects only those charged with nonviolent misdemeanors, which is a small number of people annually, but has the potential to have beneficial impact on access in the hospitals. Those individuals who need inpatient care will be diverted and hospitalized through the probate system. They will be provided with dedicated mental health treatment with direct linkage and transfer to the community.
Are there outpatient competency restoration programs operating in Ohio?
Yes, OhioMHAS is setting up regional outpatient restoration programs throughout the state. Each regional program will serve several designated counties.
How do I know who to contact for the outpatient restoration program for my county?
Bob Baker and Lisa Gordish can be contacted for this information. The information will also be able to be found on the OhioMHAS web page, mha.ohio.gov, under Forensic Services.