2520 AAS 3/2/00 S4784.1

HB 2520 - S COMM AMD

By Committee on Human Services & Corrections

                                                    ADOPTED 3/2/00

    Strike everything after the enacting clause and insert the following:

    "Sec. 1.  RCW 71.05.020 and 1999 c 13 s 5 are each amended to read as follows:

    ((For the purposes of)) The definitions in this section apply throughout this chapter((:)) unless the context clearly requires otherwise.

    (1) "Admission" or "admit" means a decision by a physician that a person should be examined or treated as a patient in a hospital;

(2) "Antipsychotic medications" means that class of drugs primarily used to treat serious manifestations of mental illness associated with thought disorders, which includes, but is not limited to atypical antipsychotic medications;

    (((2))) (3) "Attending staff" means any person on the staff of a public or private agency having responsibility for the care and treatment of a patient;

    (((3))) (4) "Commitment" means the determination by a court that a person should be detained for a period of either evaluation or treatment, or both, in an inpatient or a less restrictive setting;

(5) "Conditional release" means a revocable modification of a commitment, which may be revoked upon violation of any of its terms;

(6) "County designated mental health professional" means a mental health professional appointed by the county to perform the duties specified in this chapter;

    (((4))) (7) "Custody" means involuntary detention under the provisions of this chapter or chapter 10.77 RCW, uninterrupted by any period of unconditional release from commitment from a facility providing involuntary care and treatment;

    (((5))) (8) "Department" means the department of social and health services;

    (((6))) (9) "Detention" or "detain" means the lawful confinement of a person, under the provisions of this chapter;

(10) "Developmental disabilities professional" means a person who has specialized training and three years of experience in directly treating or working with persons with developmental disabilities and is a psychiatrist, psychologist, or social worker, and such other developmental disabilities professionals as may be defined by rules adopted by the secretary;

    (((7))) (11) "Developmental disability" means that condition defined in RCW 71A.10.020(3);

    (((8))) (12) "Discharge" means the termination of hospital medical authority.  The commitment may remain in place, be terminated, or be amended by court order;

(13) "Evaluation and treatment facility" means any facility which can provide directly, or by direct arrangement with other public or private agencies, emergency evaluation and treatment, outpatient care, and timely and appropriate inpatient care to persons suffering from a mental disorder, and which is certified as such by the department.  A physically separate and separately operated portion of a state hospital may be designated as an evaluation and treatment facility.  A facility which is part of, or operated by, the department or any federal agency will not require certification.  No correctional institution or facility, or jail, shall be an evaluation and treatment facility within the meaning of this chapter;

    (((9))) (14) "Gravely disabled" means a condition in which a person, as a result of a mental disorder:  (a) Is in danger of serious physical harm resulting from a failure to provide for his or her essential human needs of health or safety; or (b) manifests severe deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or volitional control over his or her actions and is not receiving such care as is essential for his or her health or safety;

    (((10))) (15) "Habilitative services" means those services provided by program personnel to assist persons in acquiring and maintaining life skills and in raising their levels of physical, mental, social, and vocational functioning.  Habilitative services include education, training for employment, and therapy.  The habilitative process shall be undertaken with recognition of the risk to the public safety presented by the individual being assisted as manifested by prior charged criminal conduct;

    (((11))) (16) "History of one or more violent acts" refers to the period of time ten years prior to the filing of a petition under this chapter, excluding any time spent, but not any violent acts committed, in a mental health facility or in confinement as a result of a criminal conviction;

    (((12))) (17) "Individualized service plan" means a plan prepared by a developmental disabilities professional with other professionals as a team, for an individual with developmental disabilities, which shall state:

    (a) The nature of the person's specific problems, prior charged criminal behavior, and habilitation needs;

    (b) The conditions and strategies necessary to achieve the purposes of habilitation;

    (c) The intermediate and long-range goals of the habilitation program, with a projected timetable for the attainment;

    (d) The rationale for using this plan of habilitation to achieve those intermediate and long-range goals;

    (e) The staff responsible for carrying out the plan;

    (f) Where relevant in light of past criminal behavior and due consideration for public safety, the criteria for proposed movement to less-restrictive settings, criteria for proposed eventual discharge ((from involuntary confinement)) or release, and a projected possible date for discharge ((from involuntary confinement)) or release; and

    (g) The type of residence immediately anticipated for the person and possible future types of residences;

    (((13))) (18) "Judicial commitment" means a commitment by a court pursuant to the provisions of this chapter;

    (((14))) (19) "Likelihood of serious harm" means:

    (a) A substantial risk that:  (i) Physical harm will be inflicted by an individual upon his or her own person, as evidenced by threats or attempts to commit suicide or inflict physical harm on oneself; (ii) physical harm will be inflicted by an individual upon another, as evidenced by behavior which has caused such harm or which places another person or persons in reasonable fear of sustaining such harm; or (iii) physical harm will be inflicted by an individual upon the property of others, as evidenced by behavior which has caused substantial loss or damage to the property of others; or

    (b) The individual has threatened the physical safety of another and has a history of one or more violent acts;

    (((15))) (20) "Mental disorder" means any organic, mental, or emotional impairment which has substantial adverse effects on an individual's cognitive or volitional functions;

    (((16))) (21) "Mental health professional" means a psychiatrist, psychologist, psychiatric nurse, or social worker, and such other mental health professionals as may be defined by rules adopted by the secretary pursuant to the provisions of this chapter;

    (((17))) (22) "Peace officer" means a law enforcement official of a public agency or governmental unit, and includes persons specifically given peace officer powers by any state law, local ordinance, or judicial order of appointment;

    (((18))) (23) "Private agency" means any person, partnership, corporation, or association that is not a public agency, whether or not financed in whole or in part by public funds, which constitutes an evaluation and treatment facility or private institution, hospital, or sanitarium, which is conducted for, or includes a department or ward conducted for, the care and treatment of persons who are mentally ill;

    (((19))) (24) "Professional person" means a mental health professional and shall also mean a physician, registered nurse, and such others as may be defined by rules adopted by the secretary pursuant to the provisions of this chapter;

    (((20))) (25) "Psychiatrist" means a person having a license as a physician and surgeon in this state who has in addition completed three years of graduate training in psychiatry in a program approved by the American medical association or the American osteopathic association and is certified or eligible to be certified by the American board of psychiatry and neurology;

    (((21))) (26) "Psychologist" means a person who has been licensed as a psychologist pursuant to chapter 18.83 RCW;

    (((22))) (27) "Public agency" means any evaluation and treatment facility or institution, hospital, or sanitarium which is conducted for, or includes a department or ward conducted for, the care and treatment of persons who are mentally ill; if the agency is operated directly by, federal, state, county, or municipal government, or a combination of such governments;

    (((23))) (28) "Release" means legal termination of the commitment under the provisions of this chapter;

(29) "Resource management services" has the meaning given in chapter 71.24 RCW;

    (((24))) (30) "Secretary" means the secretary of the department of social and health services, or his or her designee;

    (((25))) (31) "Social worker" means a person with a master's or further advanced degree from an accredited school of social work or a degree deemed equivalent under rules adopted by the secretary;

    (((26))) (32) "Violent act" means behavior that resulted in homicide, attempted suicide, nonfatal injuries, or substantial damage to property.

    Sec. 2.  RCW 71.05.025 and 1989 c 205 s 9 are each amended to read as follows:

    The legislature intends that the procedures and services authorized in this chapter be integrated with those in chapter 71.24 RCW to the maximum extent necessary to assure a continuum of care to persons who are mentally ill or who have mental disorders, as defined in either or both this chapter and chapter 71.24 RCW.  To this end, regional support networks established in accordance with chapter 71.24 RCW shall institute procedures which require timely consultation with resource management services by county-designated mental health professionals and evaluation and treatment facilities to assure that determinations to admit, detain, commit, treat, discharge, or release persons with mental disorders under this chapter are made only after appropriate information regarding such person's treatment history and current treatment plan has been sought from resource management services.

    Sec. 3.  RCW 71.05.050 and 1998 c 297 s 6 are each amended to read as follows:

    Nothing in this chapter shall be construed to limit the right of any person to apply voluntarily to any public or private agency or practitioner for treatment of a mental disorder, either by direct application or by referral.  Any person voluntarily admitted for inpatient treatment to any public or private agency shall be released immediately upon his or her request.  Any person voluntarily admitted for inpatient treatment to any public or private agency shall orally be advised of the right to immediate ((release)) discharge, and further advised of such rights in writing as are secured to them pursuant to this chapter and their rights of access to attorneys, courts, and other legal redress.  Their condition and status shall be reviewed at least once each one hundred eighty days for evaluation as to the need for further treatment ((and/or)) or possible ((release)) discharge, at which time they shall again be advised of their right to ((release)) discharge upon request:  PROVIDED HOWEVER, That if the professional staff of any public or private agency or hospital regards a person voluntarily admitted who requests ((release)) discharge as presenting, as a result of a mental disorder, an imminent likelihood of serious harm, or is gravely disabled, they may detain such person for sufficient time to notify the county designated mental health professional of such person's condition to enable the county designated mental health professional to authorize such person being further held in custody or transported to an evaluation and treatment center pursuant to the provisions of this chapter, which shall in ordinary circumstances be no later than the next judicial day:  PROVIDED FURTHER, That if a person is brought to the emergency room of a public or private agency or hospital for observation or treatment, the person refuses voluntary admission, and the professional staff of the public or private agency or hospital regard such person as presenting as a result of a mental disorder an imminent likelihood of serious harm, or as presenting an imminent danger because of grave disability, they may detain such person for sufficient time to notify the county designated mental health professional of such person's condition to enable the county designated mental health professional to authorize such person being further held in custody or transported to an evaluation treatment center pursuant to the conditions in this chapter, but which time shall be no more than six hours from the time the professional staff determine that an evaluation by the county designated mental health professional is necessary.

    Sec. 4.  RCW 71.05.120 and 1991 c 105 s 2 are each amended to read as follows:

    (1) No officer of a public or private agency, nor the superintendent, professional person in charge, his or her professional designee, or attending staff of any such agency, nor any public official performing functions necessary to the administration of this chapter, nor peace officer responsible for detaining a person pursuant to this chapter, nor any county designated mental health professional, nor the state, a unit of local government, or an evaluation and treatment facility shall be civilly or criminally liable for performing duties pursuant to this chapter with regard to the decision of whether to admit, discharge, release, administer antipsychotic medications, or detain a person for evaluation and treatment:  PROVIDED, That such duties were performed in good faith and without gross negligence.

    (2) This section does not relieve a person from giving the required notices under RCW 71.05.330(2) or 71.05.340(1)(b), or the duty to warn or to take reasonable precautions to provide protection from violent behavior where the patient has communicated an actual threat of physical violence against a reasonably identifiable victim or victims.  The duty to warn or to take reasonable precautions to provide protection from violent behavior is discharged if reasonable efforts are made to communicate the threat to the victim or victims and to law enforcement personnel.

    Sec. 5.  RCW 71.05.170 and 1998 c 297 s 10 are each amended to read as follows:

    Whenever the county designated mental health professional petitions for detention of a person whose actions constitute a likelihood of serious harm, or who is gravely disabled, the facility providing seventy-two hour evaluation and treatment must immediately accept on a provisional basis the petition and the person.  The facility shall then evaluate the person's condition and admit, detain, transfer, or ((release)) discharge such person in accordance with RCW 71.05.210.  The facility shall notify in writing the court and the county designated mental health professional of the date and time of the initial detention of each person involuntarily detained in order that a probable cause hearing shall be held no later than seventy-two hours after detention.

    The duty of a state hospital to accept persons for evaluation and treatment under this section shall be limited by chapter 71.24 RCW.

    Sec. 6.  RCW 71.05.210 and 1998 c 297 s 12 are each amended to read as follows:

    Each person involuntarily ((admitted to)) detained and accepted or admitted at an evaluation and treatment facility shall, within twenty-four hours of his or her admission or acceptance at the facility, be examined and evaluated by a licensed physician who may be assisted by a physician assistant according to chapter 18.71A RCW or an advanced registered nurse practitioner according to chapter 18.79 RCW and a mental health professional, and shall receive such treatment and care as his or her condition requires including treatment on an outpatient basis for the period that he or she is detained, except that, beginning twenty-four hours prior to a trial or hearing pursuant to RCW 71.05.215, 71.05.240, 71.05.310, 71.05.320, 71.05.340, or 71.05.370, the individual may refuse psychiatric medications, but may not refuse:  (1) Any other medication previously prescribed by a person licensed under Title 18 RCW; or (2) emergency lifesaving treatment, and the individual shall be informed at an appropriate time of his or her right of such refusal.  The person shall be detained up to seventy-two hours, if, in the opinion of the professional person in charge of the facility, or his or her professional designee, the person presents a likelihood of serious harm, or is gravely disabled.  A person who has been detained for seventy-two hours shall no later than the end of such period be released, unless referred for further care on a voluntary basis, or detained pursuant to court order for further treatment as provided in this chapter.

    If, after examination and evaluation, the licensed physician and mental health professional determine that the initial needs of the person would be better served by placement in a chemical dependency treatment facility, then the person shall be referred to an approved treatment program defined under RCW 70.96A.020.

    An evaluation and treatment center admitting or accepting any person pursuant to this chapter whose physical condition reveals the need for hospitalization shall assure that such person is transferred to an appropriate hospital for evaluation or admission for treatment.  Notice of such fact shall be given to the court, the designated attorney, and the county designated mental health professional and the court shall order such continuance in proceedings under this chapter as may be necessary, but in no event may this continuance be more than fourteen days.

    Sec. 7.  RCW 71.05.325 and 1994 c 129 s 8 are each amended to read as follows:

    (1) Before a person committed under grounds set forth in RCW 71.05.280(3) is released ((from involuntary treatment)) because a new petition for involuntary treatment has not been filed under RCW 71.05.320(2), the superintendent, professional person, or designated mental health professional responsible for the decision whether to file a new petition shall in writing notify the prosecuting attorney of the county in which the criminal charges against the committed person were dismissed, of the decision not to file a new petition for involuntary treatment.  Notice shall be provided at least forty-five days before the period of commitment expires.

    (2)(a) Before a person committed under grounds set forth in RCW 71.05.280(3) is permitted temporarily to leave a treatment facility pursuant to RCW 71.05.270 for any period of time without constant accompaniment by facility staff, the superintendent, professional person in charge of a treatment facility, or his or her professional designee shall in writing notify the prosecuting attorney of any county ((to which the person is to be released)) of the person's destination and the prosecuting attorney of the county in which the criminal charges against the committed person were dismissed((, of the decision conditionally to release the person)).  The notice shall be provided at least forty-five days before the anticipated ((release)) leave and shall describe the conditions under which the ((release)) leave is to occur.

    (b) The provisions of RCW 71.05.330(2) apply to proposed ((temporary releases)) leaves, and either or both prosecuting attorneys receiving notice under this subsection may petition the court under RCW 71.05.330(2).

    (3) Nothing in this section shall be construed to authorize detention of a person unless a valid order of commitment is in effect.

    (4) The existence of the notice requirements in this section will not require any extension of the ((release)) leave date in the event the ((release)) leave plan changes after notification.

    (5) The notice requirements contained in this section shall not apply to emergency medical ((furloughs)) transfers.

    (6) The notice provisions of this section are in addition to those provided in RCW 71.05.425.

    Sec. 8.  RCW 71.05.340 and 1998 c 297 s 21 are each amended to read as follows:

    (1)(a) When, in the opinion of the superintendent or the professional person in charge of the hospital or facility providing involuntary treatment, the committed person can be appropriately served by outpatient treatment prior to or at the expiration of the period of commitment, then such outpatient care may be required as a ((condition for early)) term of conditional release for a period which, when added to the inpatient treatment period, shall not exceed the period of commitment.  If the hospital or facility designated to provide outpatient treatment is other than the facility providing involuntary treatment, the outpatient facility so designated must agree in writing to assume such responsibility.  A copy of the ((conditions for early)) terms of conditional release shall be given to the patient, the county designated mental health professional in the county in which the patient is to receive outpatient treatment, and to the court of original commitment.

    (b) Before a person committed under grounds set forth in RCW 71.05.280(3) or 71.05.320(2)(c) is conditionally released under (a) of this subsection, the superintendent or professional person in charge of the hospital or facility providing involuntary treatment shall in writing notify the prosecuting attorney of the county in which the criminal charges against the committed person were dismissed, of the decision to conditionally release the person.  Notice and a copy of the ((conditions for early)) terms of conditional release shall be provided at least thirty days before the person is released from inpatient care.  Within twenty days after receiving notice, the prosecuting attorney may petition the court in the county that issued the commitment order to hold a hearing to determine whether the person may be conditionally released and the terms of the conditional release.  The prosecuting attorney shall provide a copy of the petition to the superintendent or professional person in charge of the hospital or facility providing involuntary treatment, the attorney, if any, and guardian or conservator of the committed person, and the court of original commitment.  If the county in which the committed person is to receive outpatient treatment is the same county in which the criminal charges against the committed person were dismissed, then the court shall, upon the motion of the prosecuting attorney, transfer the proceeding to the court in that county.  The court shall conduct a hearing on the petition within ten days of the filing of the petition.  The committed person shall have the same rights with respect to notice, hearing, and counsel as for an involuntary treatment proceeding, except as set forth in this subsection and except that there shall be no right to jury trial.  The issue to be determined at the hearing is whether or not the person may be conditionally released without substantial danger to other persons, or substantial likelihood of committing criminal acts jeopardizing public safety or security.  If the court disapproves of the conditional release, it may do so only on the basis of substantial evidence.  Pursuant to the determination of the court upon the hearing, the conditional release of the person shall be approved by the court on the same or modified conditions or the person shall be returned for involuntary treatment on an inpatient basis subject to release at the end of the period for which he or she was committed, or otherwise in accordance with the provisions of this chapter.

    (2) The hospital or facility designated to provide outpatient care or the secretary may modify the conditions for continued release when such modification is in the best interest of the person.  Notification of such changes shall be sent to all persons receiving a copy of the original conditions.

    (3)(a) If the hospital or facility designated to provide outpatient care, the county designated mental health professional, or the secretary determines that:

    (i) A conditionally released person is failing to adhere to the terms and conditions of his or her release;

    (ii) Substantial deterioration in a conditionally released person's functioning has occurred;

    (iii) There is evidence of substantial decompensation with a reasonable probability that the decompensation can be reversed by further inpatient treatment; or

    (iv) The person poses a likelihood of serious harm.

    Upon notification by the hospital or facility designated to provide outpatient care, or on his or her own motion, the county designated mental health professional or the secretary may order that the conditionally released person be apprehended and taken into custody and temporarily detained in an evaluation and treatment facility in or near the county in which he or she is receiving outpatient treatment.

    (b) The hospital or facility designated to provide outpatient treatment shall notify the secretary or county designated mental health professional when a conditionally released person fails to adhere to terms and conditions of his or her conditional release or experiences substantial deterioration in his or her condition and, as a result, presents an increased likelihood of serious harm.  The county designated mental health professional or secretary shall order the person apprehended and temporarily detained in an evaluation and treatment facility in or near the county in which he or she is receiving outpatient treatment.

    (c) A person detained under this subsection (3) shall be held until such time, not exceeding five days, as a hearing can be scheduled to determine whether or not the person should be returned to the hospital or facility from which he or she had been conditionally released.  The county designated mental health professional or the secretary may modify or rescind such order at any time prior to commencement of the court hearing.

    (d) The court that originally ordered commitment shall be notified within two judicial days of a person's detention under the provisions of this section, and the county designated mental health professional or the secretary shall file his or her petition and order of apprehension and detention with the court and serve them upon the person detained.  His or her attorney, if any, and his or her guardian or conservator, if any, shall receive a copy of such papers as soon as possible.  Such person shall have the same rights with respect to notice, hearing, and counsel as for an involuntary treatment proceeding, except as specifically set forth in this section and except that there shall be no right to jury trial.  The issues to be determined shall be:  (i) Whether the conditionally released person did or did not adhere to the terms and conditions of his or her conditional release; (ii) that substantial deterioration in the person's functioning has occurred; (iii) there is evidence of substantial decompensation with a reasonable probability that the decompensation can be reversed by further inpatient treatment; or (iv) there is a likelihood of serious harm; and, if any of the conditions listed in this subsection (3)(d) have occurred, whether the ((conditions of)) terms of conditional release should be modified or the person should be returned to the facility.

    (e) Pursuant to the determination of the court upon such hearing, the conditionally released person shall either continue to be conditionally released on the same or modified conditions or shall be returned for involuntary treatment on an inpatient basis subject to release at the end of the period for which he or she was committed for involuntary treatment, or otherwise in accordance with the provisions of this chapter.  Such hearing may be waived by the person and his or her counsel and his or her guardian or conservator, if any, but shall not be waivable unless all such persons agree to waive, and upon such waiver the person may be returned for involuntary treatment or continued on conditional release on the same or modified conditions.

    (4) The proceedings set forth in subsection (3) of this section may be initiated by the county designated mental health professional or the secretary on the same basis set forth therein without requiring or ordering the apprehension and detention of the conditionally released person, in which case the court hearing shall take place in not less than five days from the date of service of the petition upon the conditionally released person.

    Upon expiration of the period of commitment, or when the person is released from outpatient care, notice in writing to the court which committed the person for treatment shall be provided.

    (5) The grounds and procedures for revocation of less restrictive alternative treatment shall be the same as those set forth in this section for conditional releases.

    (6) In the event of a revocation of a conditional release, the subsequent treatment period may be for no longer than the actual period authorized in the original court order.

    Sec. 9.  RCW 71.05.390 and 1999 c 12 s 1 are each amended to read as follows:

    Except as provided in this section, the fact of admission and all information and records compiled, obtained, or maintained in the course of providing services to either voluntary or involuntary recipients of services at public or private agencies shall be confidential.

    Information and records may be disclosed only:

    (1) In communications between qualified professional persons to meet the requirements of this chapter, in the provision of services or appropriate referrals, or in the course of guardianship proceedings.  The consent of the patient, or his or her guardian, shall be obtained before information or records may be disclosed by a professional person employed by a facility unless provided to a professional person:  (a) Employed by the facility; (b) who has medical responsibility for the patient's care; (c) who is a county designated mental health professional; (d) who is providing services under chapter 71.24 RCW; (e) who is employed by a state or local correctional facility where the person is confined; or (f) who is providing evaluation, treatment, or follow-up services under chapter 10.77 RCW.

    (2) When the communications regard the special needs of a patient and the necessary circumstances giving rise to such needs and the disclosure is made by a facility providing outpatient services to the operator of a care facility in which the patient resides.

    (3) When the person receiving services, or his or her guardian, designates persons to whom information or records may be released, or if the person is a minor, when his or her parents make such designation.

    (4) To the extent necessary for a recipient to make a claim, or for a claim to be made on behalf of a recipient for aid, insurance, or medical assistance to which he or she may be entitled.

    (5) For either program evaluation or research, or both:  PROVIDED, That the secretary adopts rules for the conduct of the evaluation or research, or both.  Such rules shall include, but need not be limited to, the requirement that all evaluators and researchers must sign an oath of confidentiality substantially as follows:

    "As a condition of conducting evaluation or research concerning persons who have received services from (fill in the facility, agency, or person) I, . . . . . . . . ., agree not to divulge, publish, or otherwise make known to unauthorized persons or the public any information obtained in the course of such evaluation or research regarding persons who have received services such that the person who received such services is identifiable.

    I recognize that unauthorized release of confidential information may subject me to civil liability under the provisions of state law.

                              /s/............................... "

    (6) To the courts as necessary to the administration of this chapter.

    (7) To law enforcement officers, public health officers, or personnel of the department of corrections or the indeterminate sentence review board for persons who are the subject of the records and who are committed to the custody of the department of corrections or indeterminate sentence review board which information or records are necessary to carry out the responsibilities of their office.  Except for dissemination of information released pursuant to RCW 71.05.425 and 4.24.550, regarding persons committed under this chapter under RCW 71.05.280(3) and 71.05.320(2)(c) after dismissal of a sex offense as defined in RCW 9.94A.030, the extent of information that may be released is limited as follows:

    (a) Only the fact, place, and date of involuntary ((admission)) commitment, the fact and date of discharge or release, and the last known address shall be disclosed upon request; and

    (b) The law enforcement and public health officers or personnel of the department of corrections or indeterminate sentence review board shall be obligated to keep such information confidential in accordance with this chapter; and

    (c) Additional information shall be disclosed only after giving notice to said person and his or her counsel and upon a showing of clear, cogent and convincing evidence that such information is necessary and that appropriate safeguards for strict confidentiality are and will be maintained.  However, in the event the said person has escaped from custody, said notice prior to disclosure is not necessary and that the facility from which the person escaped shall include an evaluation as to whether the person is of danger to persons or property and has a propensity toward violence.

    (8) To the attorney of the detained person.

    (9) To the prosecuting attorney as necessary to carry out the responsibilities of the office under RCW 71.05.330(2) and 71.05.340(1)(b) and 71.05.335.  The prosecutor shall be provided access to records regarding the committed person's treatment and prognosis, medication, behavior problems, and other records relevant to the issue of whether treatment less restrictive than inpatient treatment is in the best interest of the committed person or others.  Information shall be disclosed only after giving notice to the committed person and the person's counsel.

    (10) To appropriate law enforcement agencies and to a person, when the identity of the person is known to the public or private agency, whose health and safety has been threatened, or who is known to have been repeatedly harassed, by the patient.  The person may designate a representative to receive the disclosure.  The disclosure shall be made by the professional person in charge of the public or private agency or his or her designee and shall include the dates of commitment, admission, discharge, or release, authorized or unauthorized absence from the agency's facility, and only such other information that is pertinent to the threat or harassment.  The decision to disclose or not shall not result in civil liability for the agency or its employees so long as the decision was reached in good faith and without gross negligence.

    (11) To the persons designated in RCW 71.05.425 for the purposes described in that section.

    (12) Civil liability and immunity for the release of information about a particular person who is committed to the department under RCW 71.05.280(3) and 71.05.320(2)(c) after dismissal of a sex offense as defined in RCW 9.94A.030, is governed by RCW 4.24.550.

    (13) To a patient's next of kin, guardian, or conservator, if any, in the event of death, as provided in RCW 71.05.400.

    (14) To the department of health of the purposes of determining compliance with state or federal licensure, certification, or registration rules or laws.  However, the information and records obtained under this subsection are exempt from public inspection and copying pursuant to chapter 42.17 RCW.

    The fact of admission, as well as all records, files, evidence, findings, or orders made, prepared, collected, or maintained pursuant to this chapter shall not be admissible as evidence in any legal proceeding outside this chapter without the written consent of the person who was the subject of the proceeding except in a subsequent criminal prosecution of a person committed pursuant to RCW 71.05.280(3) or 71.05.320(2)(c) on charges that were dismissed pursuant to chapter 10.77 RCW due to incompetency to stand trial or in a civil commitment proceeding pursuant to chapter 71.09 RCW.  The records and files maintained in any court proceeding pursuant to this chapter shall be confidential and available subsequent to such proceedings only to the person who was the subject of the proceeding or his or her attorney.  In addition, the court may order the subsequent release or use of such records or files only upon good cause shown if the court finds that appropriate safeguards for strict confidentiality are and will be maintained.

    Sec. 10.  RCW 71.05.425 and 1999 c 13 s 8 are each amended to read as follows:

    (1)(a) Except as provided in subsection (2) of this section, at the earliest possible date, and in no event later than thirty days before conditional release, final ((discharge)) release, authorized leave under RCW 71.05.325(2), or transfer to a ((less-restrictive)) facility other than a state mental hospital, the superintendent shall send written notice of conditional release, ((final discharge)) release, authorized leave, or transfer of a person committed under RCW 71.05.280(3) or 71.05.320(2)(c) following dismissal of a sex, violent, or felony harassment offense pursuant to RCW 10.77.090(4) to the following:

    (i) The chief of police of the city, if any, in which the person will reside; and

    (ii) The sheriff of the county in which the person will reside.

    (b) The same notice as required by (a) of this subsection shall be sent to the following, if such notice has been requested in writing about a specific person committed under RCW 71.05.280(3) or 71.05.320(2)(c) following dismissal of a sex, violent, or felony harassment offense pursuant to RCW 10.77.090(4):

    (i) The victim of the sex, violent, or felony harassment offense that was dismissed pursuant to RCW 10.77.090(4) preceding commitment under RCW 71.05.280(3) or 71.05.320(2)(c) or the victim's next of kin if the crime was a homicide;

    (ii) Any witnesses who testified against the person in any court proceedings; and

    (iii) Any person specified in writing by the prosecuting attorney.

Information regarding victims, next of kin, or witnesses requesting the notice, information regarding any other person specified in writing by the prosecuting attorney to receive the notice, and the notice are confidential and shall not be available to the person committed under this chapter.

    (c) The thirty-day notice requirements contained in this subsection shall not apply to emergency medical ((furloughs)) transfers.

    (d) The existence of the notice requirements in this subsection will not require any extension of the release date in the event the release plan changes after notification.

    (2) If a person committed under RCW 71.05.280(3) or 71.05.320(2)(c) following dismissal of a sex, violent, or felony harassment offense pursuant to RCW 10.77.090(4) escapes, the superintendent shall immediately notify, by the most reasonable and expedient means available, the chief of police of the city and the sheriff of the county in which the person resided immediately before the person's arrest.  If previously requested, the superintendent shall also notify the witnesses and the victim of the sex, violent, or felony harassment offense that was dismissed pursuant to RCW 10.77.090(4) preceding commitment under RCW 71.05.280(3) or 71.05.320(2) or the victim's next of kin if the crime was a homicide.  In addition, the secretary shall also notify appropriate parties pursuant to RCW 71.05.410.  If the person is recaptured, the superintendent shall send notice to the persons designated in this subsection as soon as possible but in no event later than two working days after the department learns of such recapture.

    (3) If the victim, the victim's next of kin, or any witness is under the age of sixteen, the notice required by this section shall be sent to the parent or legal guardian of the child.

    (4) The superintendent shall send the notices required by this chapter to the last address provided to the department by the requesting party.  The requesting party shall furnish the department with a current address.

    (5) For purposes of this section the following terms have the following meanings:

    (a) "Violent offense" means a violent offense under RCW 9.94A.030;

    (b) "Sex offense" means a sex offense under RCW 9.94A.030;

    (c) "Next of kin" means a person's spouse, parents, siblings, and children;

    (d) "Felony harassment offense" means a crime of harassment as defined in RCW 9A.46.060 that is a felony.

    Sec. 11.  RCW 71.05.640 and 1999 c 13 s 9 are each amended to read as follows:

    (1) Procedures shall be established by resource management services to provide reasonable and timely access to individual treatment records.  However, access may not be denied at any time to records of all medications and somatic treatments received by the individual.

    (2) Following discharge, the individual shall have a right to a complete record of all medications and somatic treatments prescribed during evaluation, admission, or commitment and to a copy of the discharge summary prepared at the time of his or her discharge.  A reasonable and uniform charge for reproduction may be assessed.

    (3) Treatment records may be modified prior to inspection to protect the confidentiality of other patients or the names of any other persons referred to in the record who gave information on the condition that his or her identity remain confidential.  Entire documents may not be withheld to protect such confidentiality.

    (4) At the time of discharge all individuals shall be informed by resource management services of their rights as provided in RCW 71.05.610 through 71.05.690.

    Sec. 12.  RCW 10.77.010 and 1999 c 143 s 49 and 1999 c 13 s 2 are each reenacted and amended to read as follows:

    As used in this chapter:

    (1) "Admission" means acceptance based on medical necessity, of a person as a patient.

(2) "Commitment" means the determination by a court that a person should be detained for a period of either evaluation or treatment, or both, in an inpatient or a less-restrictive setting.

(3) "Conditional release" means modification of a court-ordered commitment, which may be revoked upon violation of any of its terms.

(4) "County designated mental health professional" has the same meaning as provided in RCW 71.05.020.

    (((2))) (5) A "criminally insane" person means any person who has been acquitted of a crime charged by reason of insanity, and thereupon found to be a substantial danger to other persons or to present a substantial likelihood of committing criminal acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions.

    (((3))) (6) "Department" means the state department of social and health services.

    (((4))) (7) "Detention" or "detain" means the lawful confinement of a person, under the provisions of this chapter, pending evaluation.

(8) "Developmental disabilities professional" means a person who has specialized training and three years of experience in directly treating or working with persons with developmental disabilities and is a psychiatrist or psychologist, or a social worker, and such other developmental disabilities professionals as may be defined by rules adopted by the secretary.

    (((5))) (9) "Developmental disability" means the condition as defined in RCW 71A.10.020(3).

    (((6))) (10) "Discharge" means the termination of hospital medical authority.  The commitment may remain in place, be terminated, or be amended by court order.

(11) "Furlough" means an authorized leave of absence for a resident of a state institution operated by the department designated for the custody, care, and treatment of the criminally insane, consistent with an order of conditional release from the court under this chapter, without any requirement that the resident be accompanied by, or be in the custody of, any law enforcement or institutional staff, while on such unescorted leave.

    (((7))) (12) "Habilitative services" means those services provided by program personnel to assist persons in acquiring and maintaining life skills and in raising their levels of physical, mental, social, and vocational functioning.  Habilitative services include education, training for employment, and therapy.  The habilitative process shall be undertaken with recognition of the risk to the public safety presented by the individual being assisted as manifested by prior charged criminal conduct.

    (((8))) (13) "History of one or more violent acts" means violent acts committed during:  (a) The ten-year period of time prior to the filing of criminal charges; plus (b) the amount of time equal to time spent during the ten-year period in a mental health facility or in confinement as a result of a criminal conviction.

    (((9))) (14) "Incompetency" means a person lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect.

    (((10))) (15) "Indigent" means any person who is financially unable to obtain counsel or other necessary expert or professional services without causing substantial hardship to the person or his or her family.

    (((11))) (16) "Individualized service plan" means a plan prepared by a developmental disabilities professional with other professionals as a team, for an individual with developmental disabilities, which shall state:

    (a) The nature of the person's specific problems, prior charged criminal behavior, and habilitation needs;

    (b) The conditions and strategies necessary to achieve the purposes of habilitation;

    (c) The intermediate and long-range goals of the habilitation program, with a projected timetable for the attainment;

    (d) The rationale for using this plan of habilitation to achieve those intermediate and long-range goals;

    (e) The staff responsible for carrying out the plan;

    (f) Where relevant in light of past criminal behavior and due consideration for public safety, the criteria for proposed movement to less-restrictive settings, criteria for proposed eventual ((discharge from involuntary confinement)) release, and a projected possible date for ((discharge from involuntary confinement)) release; and

    (g) The type of residence immediately anticipated for the person and possible future types of residences.

    (((12))) (17) "Professional person" means:

    (a) A psychiatrist licensed as a physician and surgeon in this state who has, in addition, completed three years of graduate training in psychiatry in a program approved by the American medical association or the American osteopathic association and is certified or eligible to be certified by the American board of psychiatry and neurology or the American osteopathic board of neurology and psychiatry;

    (b) A psychologist licensed as a psychologist pursuant to chapter 18.83 RCW; or

    (c) A social worker with a master's or further advanced degree from an accredited school of social work or a degree deemed equivalent under rules adopted by the secretary.

    (((13))) (18) "Release" means legal termination of the court ordered commitment under the provisions of this chapter.

(19) "Secretary" means the secretary of the department of social and health services or his or her designee.

    (((14))) (20) "Treatment" means any currently standardized medical or mental health procedure including medication.

    (((15))) (21) "Violent act" means behavior that:  (a)(i) Resulted in; (ii) if completed as intended would have resulted in; or (iii) was threatened to be carried out by a person who had the intent and opportunity to carry out the threat and would have resulted in, homicide, nonfatal injuries, or substantial damage to property; or (b) recklessly creates an immediate risk of serious physical injury to another person.

    Sec. 13.  RCW 10.77.025 and 1998 c 297 s 31 are each amended to read as follows:

    (1) Whenever any person has been:  (a) Committed to a correctional facility or inpatient treatment under any provision of this chapter; or (b) ordered to undergo alternative treatment following his or her acquittal by reason of insanity of a crime charged, such commitment or treatment cannot exceed the maximum possible penal sentence for any offense charged for which the person was committed, or was acquitted by reason of insanity.

    (2) Whenever any person committed under any provision of this chapter has not been ((finally discharged)) released within seven days of the maximum possible penal sentence under subsection (1) of this section, and the professional person in charge of the facility believes ((it more likely than not that the person will not be finally discharged)) that the person presents a likelihood of serious harm or is gravely disabled due to a mental disorder, the professional person shall, prior to the ((person's release from the facility)) expiration of the maximum penal sentence, notify the appropriate county designated mental health professional of the impending ((release)) expiration and provide a copy of all relevant information regarding the person, including the likely release date and shall indicate why ((final discharge was not made)) the person should not be released.

    (3) A county designated mental health professional who receives notice and records under subsection (2) of this section shall, prior to the date of ((probable release)) the expiration of the maximum sentence, determine whether to initiate proceedings under chapter 71.05 RCW.

    Sec. 14.  RCW 10.77.110 and 1998 c 297 s 39 are each amended to read as follows:

    (1) If a defendant is acquitted of a crime by reason of insanity, and it is found that he or she is not a substantial danger to other persons, and does not present a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions, the court shall direct the defendant's ((final discharge)) release.  If it is found that such defendant is a substantial danger to other persons, or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions, the court shall order his or her hospitalization, or any appropriate alternative treatment less restrictive than detention in a state mental hospital, pursuant to the terms of this chapter.

    (2) If the defendant has been found not guilty by reason of insanity and a substantial danger, or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security, so as to require treatment then the secretary shall immediately cause the defendant to be evaluated to ascertain if the defendant is developmentally disabled.  When appropriate, and subject to available funds, the defendant may be committed to a program specifically reserved for the treatment and training of developmentally disabled persons.  A person so committed shall receive habilitation services according to an individualized service plan specifically developed to treat the behavior which was the subject of the criminal proceedings.  The treatment program shall be administered by developmental disabilities professionals and others trained specifically in the needs of developmentally disabled persons.  The treatment program shall provide physical security to a degree consistent with the finding that the defendant is dangerous and may incorporate varying conditions of security and alternative sites when the dangerousness of any particular defendant makes this necessary.  The department may limit admissions to this specialized program in order to ensure that expenditures for services do not exceed amounts appropriated by the legislature and allocated by the department for such services.  The department may establish admission priorities in the event that the number of eligible persons exceeds the limits set by the department.

    (3) If it is found that such defendant is not a substantial danger to other persons, and does not present a substantial likelihood of committing criminal acts jeopardizing public safety or security, but that he or she is in need of control by the court or other persons or institutions, the court shall direct the defendant's conditional release.

    Sec. 15.  RCW 10.77.120 and 1989 c 420 s 7 are each amended to read as follows:

    The secretary shall forthwith provide adequate care and individualized treatment at one or several of the state institutions or facilities under his or her direction and control wherein persons committed as criminally insane may be confined.  Such persons shall be under the custody and control of the secretary to the same extent as are other persons who are committed to the secretary's custody, but such provision shall be made for their control, care, and treatment as is proper in view of their condition.  In order that the secretary may adequately determine the nature of the mental illness or developmental disability of the person committed to him or her as criminally insane, and in order for the secretary to place such individuals in a proper facility, all persons who are committed to the secretary as criminally insane shall be promptly examined by qualified personnel in such a manner as to provide a proper evaluation and diagnosis of such individual.  The examinations of all developmentally disabled persons committed under this chapter shall be performed by developmental disabilities professionals.  Any person so committed shall not be ((discharged)) released from the control of the secretary save upon the order of a court of competent jurisdiction made after a hearing and judgment of ((discharge)) release.

    Whenever there is a hearing which the committed person is entitled to attend, the secretary shall send him or her in the custody of one or more department employees to the county where the hearing is to be held at the time the case is called for trial.  During the time the person is absent from the facility, he or she shall be confined in a facility designated by and arranged for by the department, and shall at all times be deemed to be in the custody of the department employee and provided necessary treatment.  If the decision of the hearing remits the person to custody, the department employee shall forthwith return the person to such institution or facility designated by the secretary.  If the state appeals an order of ((discharge)) release, such appeal shall operate as a stay, and the person in custody shall so remain and be forthwith returned to the institution or facility designated by the secretary until a final decision has been rendered in the cause.

    Sec. 16.  RCW 10.77.200 and 1998 c 297 s 44 are each amended to read as follows:

    (1) Upon application by the committed or conditionally released person, the secretary shall determine whether or not reasonable grounds exist for ((final discharge)) release.  In making this determination, the secretary may consider the reports filed under RCW 10.77.060, 10.77.110, 10.77.140, and 10.77.160, and other reports and evaluations provided by professionals familiar with the case.  If the secretary approves the ((final discharge)) release he or she then shall authorize the person to petition the court.

    (2) The petition shall be served upon the court and the prosecuting attorney.  The court, upon receipt of the petition for ((final discharge)) release, shall within forty-five days order a hearing.  Continuance of the hearing date shall only be allowed for good cause shown.  The prosecuting attorney shall represent the state, and shall have the right to have the petitioner examined by an expert or professional person of the prosecuting attorney's choice.  If the petitioner is indigent, and the person so requests, the court shall appoint a qualified expert or professional person to examine him or her.  If the petitioner is developmentally disabled, the examination shall be performed by a developmental disabilities professional.  The hearing shall be before a jury if demanded by either the petitioner or the prosecuting attorney.  The burden of proof shall be upon the petitioner to show by a preponderance of the evidence that the petitioner no longer presents, as a result of a mental disease or defect, a substantial danger to other persons, or a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions.

    (3) Nothing contained in this chapter shall prohibit the patient from petitioning the court for ((final discharge)) release or conditional release from the institution in which he or she is committed.  The issue to be determined on such proceeding is whether the petitioner, as a result of a mental disease or defect, is a substantial danger to other persons, or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions.

    Nothing contained in this chapter shall prohibit the committed person from petitioning for release by writ of habeas corpus.

    Sec. 17.  RCW 10.77.205 and 1994 c 129 s 5 are each amended to read as follows:

    (1)(a) At the earliest possible date, and in no event later than thirty days before conditional release, ((final discharge)) release, authorized furlough pursuant to RCW 10.77.163, or transfer to a less-restrictive facility than a state mental hospital, the superintendent shall send written notice of the conditional release, ((final discharge)) release, authorized furlough, or transfer of a person who has been found not guilty of a sex, violent, or felony harassment offense by reason of insanity and who is now in the custody of the department pursuant to this chapter, to the following:

    (i) The chief of police of the city, if any, in which the person will reside; and

    (ii) The sheriff of the county in which the person will reside.

    (b) The same notice as required by (a) of this subsection shall be sent to the following, if such notice has been requested in writing about a specific person committed under this chapter:

    (i) The victim of the crime for which the person was committed or the victim's next of kin if the crime was a homicide;

    (ii) Any witnesses who testified against the person in any court proceedings; and

    (iii) Any person specified in writing by the prosecuting attorney.

Information regarding victims, next of kin, or witnesses requesting the notice, information regarding any other person specified in writing by the prosecuting attorney to receive the notice, and the notice are confidential and shall not be available to the person committed under this chapter.

    (c) In addition to the notice requirements of (a) and (b) of this subsection, the superintendent shall comply with RCW 10.77.163.

    (d) The thirty-day notice requirement contained in (a) and (b) of this subsection shall not apply to emergency medical furloughs.

    (e) The existence of the notice requirements in (a) and (b) of this subsection shall not require any extension of the release date in the event the release plan changes after notification.

    (2) If a person who has been found not guilty of a sex, violent, or felony harassment offense by reason of insanity and who is committed under this chapter escapes, the superintendent shall immediately notify, by the most reasonable and expedient means available, the chief of police of the city and the sheriff of the county in which the person resided immediately before the person's arrest.  If previously requested, the superintendent shall also notify the witnesses and the victim, if any, of the crime for which the person was committed or the victim's next of kin if the crime was a homicide.  The superintendent shall also notify appropriate persons pursuant to RCW 10.77.165.  If the person is recaptured, the secretary shall send notice to the persons designated in this subsection as soon as possible but in no event later than two working days after the department learns of such recapture.

    (3) If the victim, the victim's next of kin, or any witness is under the age of sixteen, the notice required by this section shall be sent to the parents or legal guardian of the child.

    (4) The department shall send the notices required by this chapter to the last address provided to the department by the requesting party.  The requesting party shall furnish the department with a current address.

    (5) For purposes of this section the following terms have the following meanings:

    (a) "Violent offense" means a violent offense under RCW 9.94A.030;

    (b) "Sex offense" means a sex offense under RCW 9.94A.030;

    (c) "Next of kin" means a person's spouse, parents, siblings, and children;

    (d) "Authorized furlough" means a furlough granted after compliance with RCW 10.77.163;

    (e) "Felony harassment offense" means a crime of harassment as defined in RCW 9A.46.060 that is a felony.

    Sec. 18.  RCW 49.19.010 and 1999 c 377 s 2 are each amended to read as follows:

    For purposes of this chapter:

    (1) "Health care setting" means:

    (a) Hospitals as defined in RCW 70.41.020;

    (b) Home health, hospice, and home care agencies under chapter 70.127 RCW, subject to RCW 49.19.070;

    (c) Evaluation and treatment facilities as defined in RCW 71.05.020(((8))) (12); and

    (d) Community mental health programs as defined in RCW 71.24.025(((8))) (5).

    (2) "Department" means the department of labor and industries.

    (3) "Employee" means an employee as defined in RCW 49.17.020.

    (4) "Violence" or "violent act" means any physical assault or verbal threat of physical assault against an employee of a health care setting."

HB 2520 - S COMM AMD

By Committee on Human Services & Corrections

                                                    ADOPTED 3/2/00

    On page 1, line 2 of the title, after "status;" strike the remainder of the title and insert "amending RCW 71.05.020, 71.05.025, 71.05.050, 71.05.120, 71.05.170, 71.05.210, 71.05.325, 71.05.340, 71.05.390, 71.05.425, 71.05.640, 10.77.025, 10.77.110, 10.77.120, 10.77.200, 10.77.205, and 49.19.010; and reenacting and amending RCW 10.77.010."

                            --- END ---