BILL REQ. #:  S-0471.2 

Read first time 01/14/11.   Referred to Committee on Human Services & Corrections.

     AN ACT Relating to streamlining competency evaluation and competency restoration procedures; amending RCW 10.77.060, 10.77.065, 10.77.084, 10.77.088, and 71.05.290; adding a new section to chapter 10.77 RCW; creating a new section; and repealing RCW 71.05.235.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 10.77.060 and 2004 c 9 s 1 are each amended to read as follows:
     (1)(a) Whenever a defendant has pleaded not guilty by reason of insanity, or there is reason to doubt his or her competency, the court on its own motion or on the motion of any party shall either appoint or request the secretary to designate ((at least two)) a qualified expert((s)) or professional person((s)), ((one of whom)) who shall be approved by the prosecuting attorney, to examine and report upon the mental condition of the defendant. The signed order of the court shall serve as authority for the expert((s)) to be given access to all records held by any mental health, medical, educational, or correctional facility that relate to the present or past mental, emotional, or physical condition of the defendant. ((At least one of the experts or professional persons appointed shall be a developmental disabilities professional)) If the court is advised by any party that the defendant may ((be developmentally disabled)) have a developmental disability, the examination must be performed by or in conjunction with a developmental disabilities professional. ((Upon agreement of the parties, the court may designate one expert or professional person to conduct the examination and report on the mental condition of the defendant. For purposes of the examination, the court may order))
     (b) Examinations under this section must occur in the community or in a jail or detention facility. An expert or professional person designated by the secretary may request to have the defendant committed to a hospital or other suitably secure public or private mental health facility for a period of time necessary to complete the examination, but not to exceed fifteen days from the time of admission to the facility, if necessary in order to complete an evaluation. ((If the defendant is being held in jail or other detention facility, upon agreement of the parties, the court may direct that the examination be conducted at the jail or other detention facility.
     (b))) (c) When a defendant is ordered to ((be committed for inpatient)) undergo an examination under this subsection (1), the court may delay granting bail until the defendant has been evaluated for competency or sanity and appears before the court. Following the evaluation, in determining bail the court shall consider: (i) Recommendations of the expert or professional persons regarding the defendant's competency, sanity, or diminished capacity; (ii) whether the defendant has a recent history of one or more violent acts; (iii) whether the defendant has previously been acquitted by reason of insanity or found incompetent; (iv) whether it is reasonably likely the defendant will fail to appear for a future court hearing; and (v) whether the defendant is a threat to public safety.
     (2) The court may direct that a qualified expert or professional person retained by or appointed for the defendant be permitted to witness the examination authorized by subsection (1) of this section, and that the defendant shall have access to all information obtained by the court appointed expert((s)) or professional person((s)). The defendant's expert or professional person shall have the right to file his or her own report following the guidelines of subsection (3) of this section. If the defendant is indigent, the court shall upon the request of the defendant assist him or her in obtaining an expert or professional person.
     (3) The report of the examination shall include the following:
     (a) A description of the nature of the examination;
     (b) A diagnosis of the mental condition of the defendant;
     (c) If the defendant suffers from a mental disease or defect, or ((is developmentally disabled)) has a developmental disability, an opinion as to competency;
     (d) If the defendant has indicated his or her intention to rely on the defense of insanity pursuant to RCW 10.77.030, an opinion as to the defendant's sanity at the time of the act;
     (e) When directed by the court, an opinion as to the capacity of the defendant to have a particular state of mind which is an element of the offense charged;
     (f) An opinion as to whether the defendant should be evaluated by a ((county)) designated mental health professional under chapter 71.05 RCW((, and an opinion as to whether the 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)).
     (4) The secretary may execute such agreements as appropriate and necessary to implement this section.

Sec. 2   RCW 10.77.065 and 2008 c 213 s 1 are each amended to read as follows:
     (1)(a)(i) The ((facility)) expert conducting the evaluation shall provide ((its)) his or her report and recommendation to the court in which the criminal proceeding is pending. A copy of the report and recommendation shall be provided to the designated mental health professional, the prosecuting attorney, the defense attorney, and the professional person at the local correctional facility where the defendant is being held, or if there is no professional person, to the person designated under (a)(ii) of this subsection. Upon request, the ((facility)) expert shall also provide copies of any source documents relevant to the evaluation to the designated mental health professional. The report and recommendation shall be provided not less than twenty-four hours preceding the transfer of the defendant to the correctional facility in the county in which the criminal proceeding is pending.
     (ii) If there is no professional person at the local correctional facility, the local correctional facility shall designate a professional person as defined in RCW 71.05.020 or, in cooperation with the regional support network, a professional person at the regional support network to receive the report and recommendation.
     (iii) ((When a defendant is transferred to the facility conducting the evaluation, or)) Upon commencement of a defendant's evaluation in the local correctional facility, the local correctional facility must notify the evaluator ((or the facility conducting the evaluation)) of the name of the professional person, or person designated under (a)(ii) of this subsection to receive the report and recommendation.
     (b) If the ((facility)) expert concludes, under RCW 10.77.060(3)(f), the person should be ((kept under further control, an evaluation shall be conducted)) evaluated by a designated mental health professional, the court shall order the evaluation of such person under chapter 71.05 RCW((. The court shall order an evaluation be conducted by the appropriate designated mental health professional)): (i) Prior to release from confinement for such person who is convicted, if sentenced to confinement for twenty-four months or less; (ii) for any person who is acquitted; or (iii) for any person: (A) Whose charges are dismissed pursuant to RCW 10.77.086(4); or (B) whose nonfelony charges are dismissed.
     (2) The designated mental health professional shall provide written notification within twenty-four hours of the results of the determination whether to commence proceedings under chapter 71.05 RCW. The notification shall be provided to the persons identified in subsection (1)(a) of this section.
     (3) The prosecuting attorney shall provide a copy of the results of any proceedings commenced by the designated mental health professional under subsection (2) of this section to the ((facility conducting the evaluation under this chapter)) secretary.
     (4) The fact of admission and all information and records compiled, obtained, or maintained in the course of providing services under this chapter may also be disclosed to the courts solely to prevent the entry of any evaluation or treatment order that is inconsistent with any order entered under chapter 71.05 RCW.

Sec. 3   RCW 10.77.084 and 2007 c 375 s 3 are each amended to read as follows:
     (1)(a) If at any time during the pendency of an action and prior to judgment the court finds, following a report as provided in RCW 10.77.060, a defendant is incompetent, the court shall order the proceedings against the defendant be stayed except as provided in subsection (4) of this section.
     (b) ((A defendant found incompetent shall be evaluated at the direction of the secretary and a determination made whether the defendant is an individual with a developmental disability. Such evaluation and determination shall be accomplished as soon as possible following the court's placement of the defendant in the custody of the secretary.
     (i) When appropriate, and subject to available funds, if the defendant is determined to be an individual with a developmental disability, he or she may be placed in a program specifically reserved for the treatment and training of persons with developmental disabilities where the defendant shall have the right to habilitation according to an individualized service plan specifically developed for the particular needs of the defendant. A copy of the evaluation shall be sent to the program.
     (A) The program shall be separate from programs serving persons involved in any other treatment or habilitation program.
     (B) The program shall be appropriately secure under the circumstances and shall be administered by developmental disabilities professionals who shall direct the habilitation efforts.
     (C) The program shall provide an environment affording security appropriate with the charged criminal behavior and necessary to protect the public safety.
     (ii) The department may limit admissions of such persons 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.
     (iii) The department may establish admission priorities in the event that the number of eligible persons exceeds the limits set by the department.
     (c))) At the end of the mental health treatment and restoration period, if any, or at any time a professional person determines competency has been, or is unlikely to be, restored, the defendant shall be returned to court for a hearing. If, after notice and hearing, competency has been restored, the stay entered under (a) of this subsection shall be lifted. If competency has not been restored, the proceedings shall be dismissed. If the court concludes that competency has not been restored, but that further treatment within the time limits established by RCW 10.77.086 ((or 10.77.088)) is likely to restore competency, the court may order that treatment for purposes of competency restoration be continued. Such treatment may not extend beyond the ((combination of)) time provided for in RCW 10.77.086 ((or 10.77.088)).
     (((d))) (c) If at any time during the proceeding the court finds, following notice and hearing, a defendant is not likely to regain competency, the proceedings shall be dismissed and the defendant shall be evaluated for civil commitment proceedings.
     (2) If the defendant is referred to the designated mental health professional for consideration of initial detention proceedings under chapter 71.05 RCW pursuant to this chapter, the designated mental health professional shall provide prompt written notification of the results of the determination whether to commence initial detention proceedings under chapter 71.05 RCW and whether the person was detained. The notification shall be provided to the court in which the criminal action was pending, the prosecutor, the defense attorney in the criminal action, and the facility that evaluated the defendant for competency.
     (3) The fact that the defendant is unfit to proceed does not preclude any pretrial proceedings which do not require the personal participation of the defendant.
     (4) A defendant receiving medication for either physical or mental problems shall not be prohibited from standing trial, if the medication either enables the defendant to understand the proceedings against him or her and to assist in his or her own defense, or does not disable him or her from so understanding and assisting in his or her own defense.
     (5) At or before the conclusion of any commitment period provided for by this section, the facility providing evaluation and treatment shall provide to the court a written report of examination which meets the requirements of RCW 10.77.060(3).

Sec. 4   RCW 10.77.088 and 2007 c 375 s 5 are each amended to read as follows:
     (1)(a) If the defendant is charged with a nonfelony crime which is a serious offense as identified in RCW 10.77.092 and found by the court to be not competent, then the court shall order ((the secretary to place the defendant:
     (i) At a secure mental health facility in the custody of the department or an agency designated by the department for mental health treatment and restoration of competency. The placement shall not exceed fourteen days in addition to any unused time of the evaluation under RCW 10.77.060. The court shall compute this total period and include its computation in the order. The fourteen-day period plus any unused time of the evaluation under RCW 10.77.060 shall be considered to include only the time the defendant is actually at the facility and shall be in addition to reasonable time for transport to or from the facility;
     (ii) On conditional release for up to ninety days for mental health treatment and restoration of competency; or
     (iii) Any combination of this subsection.
     (b)(i))) the defendant to be evaluated for the purpose of civil commitment pursuant to chapter 71.05 RCW. If the ((proceedings are dismissed under RCW 10.77.084 and the)) defendant was on conditional release at the time of dismissal, the ((court shall order the designated mental health professional within that county to evaluate the defendant pursuant to chapter 71.05 RCW. The)) evaluation may be conducted in any location chosen by the designated mental health professional.
     (((ii))) (b) If the defendant was in custody ((and not on conditional release)) at the time of dismissal, the defendant shall be detained ((and sent to an evaluation and treatment facility)) in the custody of the jail or detention center for up to seventy-two hours((, excluding Saturdays, Sundays, and holidays,)) for evaluation for the purposes of ((filing a petition under)) chapter 71.05 RCW. ((The seventy-two-hour period shall commence upon the next nonholiday weekday following the court order and shall run to the end of the last nonholiday weekday within the seventy-two-hour period.))
     (2) If the defendant is charged with a nonfelony crime that is not a serious offense as defined in RCW 10.77.092:
     The court may stay or dismiss proceedings and detain the defendant for sufficient time to allow the designated mental health professional to evaluate the defendant and consider initial detention proceedings under chapter 71.05 RCW. The court must give notice to all parties at least twenty-four hours before the dismissal of any proceeding under this subsection, and provide an opportunity for a hearing on whether to dismiss the proceedings.

NEW SECTION.  Sec. 5   A new section is added to chapter 10.77 RCW to read as follows:
     (1) A defendant found incompetent shall be evaluated at the direction of the secretary and a determination made whether the defendant is an individual with a developmental disability. The evaluation and determination must be accomplished as soon as possible following the court's placement of the defendant in the custody of the secretary.
     (2) When appropriate, and subject to available funds, if the defendant is determined to be an individual with a developmental disability, he or she may be placed in a program specifically reserved for the treatment and training of persons with developmental disabilities where the defendant has the right to habilitation according to an individualized service plan specifically developed for the particular needs of the defendant. A copy of the evaluation must be sent to the program.
     (a) The program must be separate from programs serving persons involved in any other treatment or habilitation program.
     (b) The program must be appropriately secure under the circumstances and must be administered by developmental disabilities professionals who shall direct the habilitation efforts.
     (c) The program shall provide an environment affording security appropriate with the charged criminal behavior and necessary to protect the public safety.
     (3) The department may limit admissions of such persons 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.
     (4) The department may establish admission priorities in the event that the number of eligible persons exceeds the limits set by the department.

Sec. 6   RCW 71.05.290 and 2009 c 217 s 3 are each amended to read as follows:
     (1) At any time during a person's fourteen day intensive treatment period, the professional person in charge of a treatment facility or his or her professional designee or the designated mental health professional may petition the superior court for an order requiring such person to undergo an additional period of treatment. Such petition must be based on one or more of the grounds set forth in RCW 71.05.280.
     (2) The petition shall summarize the facts which support the need for further confinement and shall be supported by affidavits signed by:
     (a) Two examining physicians;
     (b) One examining physician and examining mental health professional;
     (c) Two psychiatric advanced registered nurse practitioners;
     (d) One psychiatric advanced registered nurse practitioner and a mental health professional; or
     (e) An examining physician and an examining psychiatric advanced registered nurse practitioner. The affidavits shall describe in detail the behavior of the detained person which supports the petition and shall explain what, if any, less restrictive treatments which are alternatives to detention are available to such person, and shall state the willingness of the affiant to testify to such facts in subsequent judicial proceedings under this chapter.
     (3) If a person has been determined to be incompetent pursuant to RCW 10.77.086(4), then the professional person in charge of the treatment facility or his or her professional designee or the designated mental health professional may directly file a petition for one hundred eighty day treatment under RCW 71.05.280(3), or if the person has been determined to be incompetent pursuant to RCW 10.77.088(1), a petition for ninety days of treatment may be filed under RCW 71.05.230. No petition for initial detention or fourteen day detention is required before such a petition may be filed.

NEW SECTION.  Sec. 7   The legislature does not intend to increase or decrease the prevailing waiting times for forensic services as a result of this act. Rather, to the extent practicable, the intention for the 2011-2013 biennium is to capture any reduction in state hospital admissions or other efficiencies created in the form of reductions at the state hospitals and cost savings to the state. To the extent practicable, staffing should be provided for competency evaluations so that any increase in the number of evaluations performed in a jail or secure detention facility during the 2011-2013 biennium resulting from this act compared to the number of evaluations performed at a state hospital does not result in an increase in the number of jail days consumed by defendants waiting for competency evaluations, relative to the baseline established during the 2009-2011 biennium.

NEW SECTION.  Sec. 8   RCW 71.05.235 (Examination, evaluation of criminal defendant -- Hearing) and 2008 c 213 s 5, 2005 c 504 s 708, 2000 c 74 s 6, 1999 c 11 s 1, & 1998 c 297 s 18 are each repealed.