¶1dissenting.
¶2I must respectfully dissent from the majority opinion because the circuit judge did not abuse his discretion by ordering Bishop to undergo a mental evaluation requested by the prosecution in order to determine his competency to stand trial in addition to the evaluation by the Kentucky Correctional Psychiatric Center previously ordered. In this case, Bishop is not entitled to a writ of prohibition because he has an adequate remedy by appeal.
¶3I share many of the concerns expressed so well by Justice Keller in his concurring opinion. I agree with him that the conclusion that it is never proper for a trial judge to order an independent competency evaluation by an expert for the Commonwealth is flawed. The conclusion by the majority that the Commonwealth does not have the right to an independent competency evaluation could in some cases erroneously limit the Commonwealth’s ability to offer rebuttal expert testimony at competency hearings. CR 35.01 authorizes a trial judge to order a party to submit to a mental examination when the mental condition of the party is in controversy and the moving party demonstrates good cause for the examination. The rule is available in criminal proceedings and would permit a court, in exceptional cases, to order a criminal defendant to submit to a competency evaluation conducted by the Commonwealth’s expert. In this case, the Commonwealth demonstrated sufficient good cause for the evaluation requested. *171KRS 504.100 provides in pertinent part as follows:
(1) If, upon arraignment, or during any stage of the proceedings, the Court has reasonable grounds to believe the defendant is incompetent to stand trial, the court shall appoint at least one (1) psychologist, or psychiatrist, to examine, treat and report on the defendant’s mental condition.
¶4A competency determination has significant consequences for both the defendant and the Commonwealth. The evidentiary hearing at which a trial judge determines the competency of the defendant to stand trial is an adversarial proceeding. Cf. Gabbard v. Commonwealth, Ky., 887 S.W.2d 547 (1994). The appointed examiner’s report is only one part of the evidence the factfinder must consider. Parties are entitled to, and in many cases do, introduce additional evidence for the court’s consideration. See Johnson v. Commonwealth, Ky., 103 S.W.3d 687 (2003). The absence of explicit statutory language does not support the conclusion that the Commonwealth is prevented from seeking authorization for an independent examination. If the Commonwealth can demonstrate good cause, it should be permitted to seek an independent competency evaluation pursuant to CR 35.01.
¶5I would deny the petition for a writ of prohibition.