Background: Competency restoration treatment may be provided to criminal defendants who have been judicially found to be incompetent to stand trial. When a defendant is ordered to receive competency restoration treatment, The Secretary of the Department of Social and Health Services (DSHS) may place the defendant in any appropriate facility for treatment for specified time periods. Currently and historically, DSHS provides competency restoration treatment exclusively at state hospitals.

Incompetent to stand trial means a defendant does not have the present capacity to understand the criminal proceedings against them, or sufficient ability to assist in their own defense. Competency restoration treatment is treatment targeted to restore a defendant to competency, so that the defendant may be placed on trial.

A felony defendant may be committed for up to three periods of competency restoration treatment. The first period is either 45 days if the defendant is charged with a class C or nonviolent class B felony, or else 90 days. The court must conduct a hearing on or before the last day of this period to determine whether the defendant has been restored to competency. The defendant may demand to have competence determined by jury.

If the defendant is again found incompetent, the court may order a new competency restoration period for up to 90 days, followed by a hearing. The extension of the treatment period is not allowed if DSHS determines that the defendant's incompetence is solely the result of a developmental disability and competency is not reasonably likely to be regained during the extension. If at the end of this period the defendant is again found incompetent, the court must dismiss charges without prejudice and order the defendant to be committed to a state hospital for the purpose of evaluation for civil commitment, unless the court finds that (1) the defendant is a substantial danger to other persons, or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security; and (2) there is a substantial probability that the defendant will regain competence within a reasonable period of time. In this case the court may order a final period of competency restoration treatment for up to 180 days, after which the court must hold a final competency hearing as described in this paragraph.

The competency restoration process for a misdemeanor defendant is similar, except that there is one period of competency restoration treatment available for up to 14 days, in addition to any unused time of the evaluation. A jury determination of competency is not available. If competency restoration is not successful, and the defendant is in custody and charged with a serious misdemeanor, the court must dismiss the charges without prejudice and detain the defendant to an evaluation and treatment facility for the purpose of an evaluation for civil commitment.

A person is criminally insane when they have been acquitted of a crime by reason of insanity by court or jury and committed to a state hospital on the basis of danger to other persons or substantial likelihood of committing criminal acts jeopardizing public safety or security.

A person who is awaiting placement in a treatment program or a court hearing under chapter 10.77 RCW may be confined for no more than seven days.

The state of Washington is currently being sued in federal court concerning allegations that waiting times for competency evaluation and competency restoration services violate the rights of defendants under the federal Constitution and the Americans With Disabilities Act. In December the court ruled that current wait times violate the constitutional rights of defendants. Further court proceedings are scheduled for March 2015.

Summary of Bill (Recommended Substitute): The Legislature encourages DSHS to develop, on a phased-in basis, alternative locations and increased access to competency restoration services for individuals who do not require inpatient hospitalization. This may include community mental health providers or other local facilities that are willing and able to provide appropriate treatment under contract. During the 2015-17 fiscal biennium, county jails may be used for this purpose if the Secretary of DSHS determines there is an emergent need for beds and documents the justification, including a plan to address the emergency. Competency restoration patients must be physically separated from other populations at the jail, must interact only with treatment staff and not jail staff, and must be provided as much as possible with a therapeutic environment. A new secure facility developed for inpatient treatment of defendants ordered to receive competency restoration may not be sited within 500 feet of the facilities and grounds of a public or private school.

Time periods for competency restoration treatment for felony and misdemeanor defendants must include only time that the defendant is at the facility receiving treatment and do not include reasonable time for transport.

A statutory seven-day time limit for placement in a treatment program or a court hearing under chapter 10.77 RCW is specified to apply only to persons who are criminally insane.

EFFECT OF CHANGES MADE BY HUMAN SERVICES, MENTAL HEALTH & HOUSING COMMITTEE (Recommended Substitute): During the 2015-17 fiscal biennium, county jails may be used for competency restoration if the Secretary of DSHS determines there is an emergent need for beds and documents the justification, including a plan to address the emergency. Competency restoration patients must be physically separated from other populations at the jail, must interact only with treatment staff and not jail staff, and must be provided as much as possible with a therapeutic environment. A new secure facility developed for inpatient treatment of defendants ordered to receive competency restoration may not be sited within 500 feet of the facilities and grounds of a public or private school. A facility must be willing and able to provide appropriate treatment under contract.

Staff Summary of Public Testimony on Original Bill: PRO: DSHS' mission is to support sustainable recovery, independence, and wellness, including for the forensic population. In the past three years, the number of court referrals for forensic services has increased by 30 percent. We have serious concerns about wait times for services. This bill would clarify the alternative sites in which restoration services could be provided. We are aware of concerns about using jails for this purpose. Four to six weeks are required for trials of modern antipsychotic drugs. We are considering outpatient models, secure or semi-secure residential treatment models, and county jail-based models.

CON: We agree with the goal to speed the process of competency restoration, and of expanding restoration alternatives. We oppose allowing competency restoration in jails. Jails are not therapeutic environments. Courts have distinguished between jails and treatment facilities, and found jail conditions unconstitutional. Risk of suicide, decompensation, and victimization is higher in jail. We need better separation between mental health and criminal justice. Defendants should not stay in jail while competency is being determined. In our rural county, our corrections staff do not have the training to handle competency restoration. This bill is before you due to resource concerns. State hospitals can provide this treatment with sufficient resources. State hospitals provide the best therapeutic environment based on the staff, training, environment, and a physical plant which protects the safety of patients and staff. The bill lacks specificity as to who qualifies for community restoration. We need a plan to increase infrastructure to meet capacity needs. State hospitals are not the only solution, but they are a necessary part of the solution.

OTHER: Competency service delays are awful. Defendants can be locked down 23 hours a day, sometimes in real danger. Competency restoration treatment should be eliminated for misdemeanor defendants. Civil commitment is the appropriate system for persons with nonviolent behavior and low functioning. Please amend the bill to require DSHS to contract with facilities that are willing and able to provide treatment. My mentally ill felony clients are often not criminals; they are responding to their illness. Outpatient competency restoration is sufficient. Earlier access to community mental health treatment could prevent issues from occurring. Imagine the outcry if this happened to cats and dogs. Wait times for competency restoration must be shortened. We agree with using community facilities, but not use of jails. Please amend the definition of expert to include licensed mental health counselors to help provide community restoration services. It takes 45–60 days for a defendant in jail to receive a competency evaluation in eastern Washington. Please don't amend the seven-day time limit, because it helps us get evaluations faster.