Increases the availability of professionals to perform evaluations regarding a defendant's fitness to proceed to trial in a criminal proceeding

3 Co-sponsors

• Tom Libous
• Patrick M. Gallivan
• Thomas F. O'Mara

BILL NUMBER:S3884

Title of bill

An act to amend the criminal procedure law, in relation to increasing the availability of professionals to perform evaluations regarding a defendant's fitness to proceed to trial in a criminal proceeding

Purpose or general idea of bill

To increase the availability of professionals operating within their scope of practice to perform evaluations regarding a defendant's fitness to proceed to trial in a criminal proceeding.

Summary of specific provisions

This bill would amend the Criminal Procedure Law section 730.10-730.70 regarding the determination of a defendant's mental fitness to understand the proceedings against him or to assist in his or her own defense in a criminal proceeding. It adds the professions of licensed clinical social workers and licensed nurse practitioners in psychiatry to the definition of "psychiatric examiner", the professionals who may conduct such examinations. This bill would update all other references to psychiatric examinations under CPL 730 include licensed clinical social workers and licensed nurse practitioners in psychiatry as examiners.

Justification

The ability to identify and secure a psychiatrist or psychologist able and willing to perform mental fitness examinations is very limited in many areas across New York State. This has caused a backlog in CPL 730 examinations thus further impacting the criminal Justice system in addressing persons whose fitness to proceed is in question. By adding licensed clinical social workers and nurse practitioners in psychiatry as acceptable psychiatric examiners, the ability for Directors to identify and secure examiners pursuant to CPL 730 will be greatly increased.

Furthermore, by freeing unlicensed professionals to provide CPL 730 exams, the overall strain on the mental health system will be mitigated by freeing up scarce psychiatrist services for patients requiring medical services. There is a particular shortage of psychiatrists, who are often in more demand to oversee local clinical services and cannot afford the time necessary for travel, examination and testimony required to carry out the CPL 730 process. Recent changes in the statute licensing scopes of practice for social workers and nurse practitioners insure that they are equally qualified to make the determinations required of a psychiatric examiner under this statute. Localities and clinics have many more licensed clinical social workers and nurse practitioners to provide these examinations in a more timely and cost effective manner.

Licensed clinical social workers (LCWS) and nurse practitioners in psychiatry (NPPs) are both licensed under Title VIII of the New York State Education Law, requiring extensive training in mental health assessment and treatment.

As licensed professionals, LCSWs and NPPs are required to operate only within their training and competency, and therefore only those licensees qualified to perform a psychiatric examination would be eligible do so in accordance with statue governing unprofessional conduct and the rules of the NYS Board of Regents. Such protections in general Education Law will preclude any concerns over any individual professional's ability to perform an examination under this section of law. Moreover. at least one court in New York State has already determined, as a matter of law, that "in terms of clinical functions, the scope of practice of psychology and the scope of practice of licensed clinical social work, although described using some different words at times, do not vary in substance and are wholly equal and the same."

Prior legislative history

New Legislation.

Fiscal implications for state and local governments

This legislation would have no cost to the state and would reduce costs for counties which could use more readily available staff professionals to perform such examinations.

Effective date

This act would take effect immediately.