Sec. 540.8. Discharge or conditional release; fitness to stand trial and return of patients to the custody of the criminal court

(a) No patient who is in the custody of the commissioner pursuant to a temporary order of observation, an order of commitment or an order of retention shall be discharged or conditionally released without court authorization.

(b) The clinical director may apply to the court for the return of a patient who is in the custody of the commissioner pursuant to a temporary order of observation, an order of commitment or an order of retention to the custody of the criminal court upon a finding that he is not an incapacitated person after consultation with the hospital forensic committee in accordance with the procedures described in section 540.9 of this Part, or after review and consideration of the report and recommendations of a psychiatric examiner designated in accordance with the procedures described in subdivision (c) of this section.

(c) The clinical director shall have responsibility for deciding whether the patient remains an incapacitated person or is fit to stand trial.

(1) In exercising this responsibility, the clinical director may designate a psychiatric examiner who is employed at the facility to examine the patient. The psychiatric examiner so designated shall prepare a report in which he or she makes a recommendation to the clinical director.

(2) The clinical director shall review and consider the recommendations of the designated psychiatric examiner in making a determination of whether the patient remains an incapacitated person or is fit to stand trial. The clinical director is not required to follow such recommendations.

(d) Persons who are in the custody of the commissioner pursuant to a final order of observation, or after having been converted to civil status, may be discharged or conditionally released by the clinical director, after consultation with the hospital forensic committee as required in section 540.9 of this Part and compliance with the requirements of section 540.10 of this Part.