27-20.5-06. Fitness to proceed examination. (Effective after January 1, 2027)
1. If there is reason to doubt the minor's fitness to proceed, the court shall order the
minor to be examined by a tier 1a mental health professional.
2. This section does not prohibit any party from retaining the party's own qualified tier 1a
mental health professional to conduct additional evaluations at the party's own
expense.
3. The fitness to proceed examination must be conducted in the least restrictive
environment and may not be conducted in a treatment facility as defined in section
25-03.1-02.
4. The court shall order the prosecuting attorney, minor's attorney, and juvenile court staff
to submit any information considered relevant to the fitness to proceed examination to
the tier 1a mental health professional, including:
a. The names and addresses of all attorneys involved;
b. Information about the alleged offense; and
c. Any information about the minor's background which is in the prosecuting
attorney's possession.
5. Except as prohibited by federal law, the court shall require the attorneys and juvenile
court staff to provide any available records regarding the minor and any other
information relevant to the examination to the tier 1a mental health professional,
including:
a. Psychiatric records;
b. School records;
c. Medical records; and
d. Child protective services records.
6. The requirement to provide records or information under subsections 4 and 5 does not
limit, waive, or abrogate the work product doctrine or the attorney-client privilege, and
release of records and information under subsections 4 and 5 is subject to the work
product doctrine and the attorney-client privilege.
7. The fitness to proceed examination must occur within twenty days from receipt of
materials identified in subsections 4 and 5 and notice of entry of the order served on
the tier 1a mental health professional.
a. The court may grant up to an additional fifteen days to complete the examination
if good cause is shown.
b. The materials required in subsections 4 and 5 must be disclosed
contemporaneously with the order.
c. The tier 1a mental health professional shall notify the court and request any
missing or additional information within seventy-two hours upon discovery of the
missing information or receiving this information, and the attorneys and juvenile
court staff have seven days to send the information to the tier 1a mental health
professional.
8. A tier 1a mental health professional who conducts a fitness to proceed examination
shall submit a written report to the court no later than fifteen days from completing the
fitness to proceed examination. The report must include:
a. A description of the nature, content, and extent of the examination, including:
(1) A description of the assessment procedure, technique, and test used;
(2) Medical, educational, and court records reviewed; and
(3) Social, clinical, developmental, and available legal history.
b. A clinical assessment that includes:
(1) A mental status examination;
(2) The diagnosis and functional impact of mental illness, developmental
disability, or cognitive impairment. If the minor is taking medication, the
impact of the medication on the minor's mental state and behavior;
(3) An assessment of the minor's intelligence and maturity level, when relevant;
(4) The minor's age, developmental state, and decisionmaking abilities; and
(5) Whether the minor has any other factor that affects fitness to proceed.
c. A description of abilities and deficits in the following mental competency functions
related to the minor's fitness to proceed:
(1) The ability to factually and rationally understand and appreciate the nature
and object of the proceedings, including the ability to:
(a) Understand the role of the participants in the court process, including
the roles of the judge, the minor's attorney, the prosecuting attorney,
the probation officer, witnesses, and the jury, and to understand the
adversarial nature of the process;
(b) Appreciate the offense and understand the seriousness of the offense;
(c) Understand and realistically appraise the likely outcomes; and
(d) Extend thinking into the future.
(2) The ability to render meaningful assistance to the minor's attorney in the
preparation of the case, including:
(a) The ability to disclose to an attorney a reasonably coherent
description of facts and events pertaining to the charge, as perceived
by the minor;
(b) The ability to consider the impact of the minor's action on others;
(c) Verbal articulation abilities or the ability to express himself or herself in
a reasonable and coherent manner;
(d) Logical decisionmaking abilities, including multifactored problem
solving or the ability to take several factors into consideration in
making a decision;
(e) The ability to reason about available options by weighing the
consequences, including distinguishing between a not guilty and guilty
plea, weighing pleas, dispositions, waivers, and strategies; and
(f) The ability to display appropriate courtroom behavior and testify
relevantly.
9. The tier 1a mental health professional shall provide the court with a written report
about the minor's fitness to proceed. If the tier 1a mental health professional
determines the minor lacks fitness to proceed, the tier 1a mental health professional
shall comment on the nature of any psychiatric or psychological disorder or cognitive
impairment, the prognosis, and the available services needed to remediate the minor
to fitness, if possible, within a projected time frame.
10. The court shall provide copies of the written report to the minor's attorney, the
prosecuting attorney, the parents' attorney, and any guardian ad litem for the minor as
soon as possible.
