(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 Office of Mental Health if the person is suspected of having a mental illness or designated by the Office of Intellectual and Developmental Disabilities 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 Office of Mental Health or the Office of Intellectual and Developmental Disabilities for a period not to exceed fifteen days. (B) Before the expiration of the examination period or the examination and observation period, the Office of Mental Health or the Office of Intellectual and Developmental Disabilities, 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 Office of Mental Health find indications of intellectual disability or a related disability but not mental illness, the Office of Mental Health 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 Office of Intellectual and Developmental Disabilities. If the examiners designated by the Office of Intellectual and Developmental Disabilities find indications of mental illness but not intellectual disability or a related disability, the Office of Intellectual and Related Disabilities 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 Office of Mental Health. If either the Office of Mental Health or the Office of Intellectual and Developmental Disabilities 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 Office of Mental Health and one examiner from the Office of Intellectual and Developmental Disabilities be designated to further evaluate the person and render a final report on the person's mental capacity. Code Commissioner's Note At the direction of the Code Commissioner, certain references in the S.C. Code to the State Department of Mental Health, South Carolina Mental Health Commission, Department of Disabilities and Special Needs, Department of Disabilities and Special Needs Commission, Department of Alcohol and Other Drug Abuse Services, and other related terms were changed to reflect the restructuring of these agencies into component offices under the Department of Behavioral Health and Developmental Disabilities, pursuant to 2025 Act No. 3, SECTION 18.
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