Background: A person is incompetent to stand trial when, due to a mental disease or defect, the person lacks the capacity to understand the nature of the criminal proceedings against them or assist in their own defense.

A person may be subject to civil commitment when, due to a mental disorder, the person presents a likelihood of serious harm or is gravely disabled. A person whose felony charges were dismissed based on incompetency to stand trial may additionally be subject to civil commitment if it is proven that the person committed acts constituting a felony and, due to a mental disorder, presents a substantial likelihood of repeating similar acts. The superintendent of the mental health facility must notify the sheriff and police chief of the county where such a person will reside 30 days before the person's release if the felony is classified as a sex, violent, or felony harassment offense.

The longest time period allowed by state law for civil commitment under the Involuntary Treatment Act is 180 days. New petitions for civil commitment must set forth the legal grounds supporting the commitment and be supported by the affidavits of one witness who is an examining physician or psychiatric advanced registered nurse practitioner and a second witness who is an examining physician, psychiatric advanced registered nurse practitioner, or mental health professional. The affidavits must describe in detail the behavior of the detained person that supports the petition and explain which, if any, less-restrictive alternatives to detention are available to the person. The superintendent may release the person before the expiration of the commitment period if the superintendent determines that the person no longer presents a likelihood of serious harm.

A person subject to commitment has the following rights:

to not be presumed incompetent as a consequence of receiving an evaluation;
to a judicial hearing in a superior court;
to have an attorney appointed if they are indigent;
to present evidence on their own behalf;
to cross-examine witnesses who testify against them;
to be proceeded against by the rules of evidence;
to remain silent; and
to have access to all petitions and reports in the court file.

If the petition is for 90 days or more, the person has a right to a jury trial. The burden of proof is by clear, cogent, and convincing evidence and is placed upon the petitioner.

When a defendant is incompetent to stand trial, the court may order up to 360 days of competency restoration treatment for felony defendants and 29 days for defendants charged with serious misdemeanors. If treatment is unsuccessful, the court must dismiss the charges without prejudice. For a felony defendant, the court must either release the defendant or transfer the defendant to a hospital or secure mental health facility. For a defendant charged with a serious misdemeanor, the court must send the defendant to an evaluation and treatment facility. The defendant must then be evaluated for civil commitment. For a felony defendant, the hospital or secure mental health facility may directly file a 180-day civil commitment petition. For a defendant charged with a serious misdemeanor, the evaluation and treatment facility may directly file a 90-day civil commitment petition.

In 2010, the Public Safety Review Panel (PSRP) was created to provide advice to the Secretary of the Department of Social and Health Services (DSHS) concerning persons committed to the state hospitals as criminally insane, and to review release recommendations pertaining to those individuals. The PSRP consists of seven volunteer members representing different affiliations appointed by the Governor for renewable three-year terms.

Summary of Bill (Recommended Amendments): A felony defendant whose charges are dismissed based on incompetent to stand trial must be sent to a state hospital for civil commitment. Court discretion to release a felony defendant is eliminated.

When the charges of a misdemeanor defendant are dismissed based on incompetent to stand trial, a designated mental health professional (DMHP) or other professional person must be permitted to screen the defendant prior to transport to an evaluation and treatment facility (E&T) and release the defendant if civil commitment criteria are not met. The requirement of a 48-hour hold before discharge for superior court notification is eliminated. Notice must be given to the prosecutor and defense attorney whenever a civil commitment petition is not filed for a felony or misdemeanor defendant after dismissal of charges based on incompetent to stand trial.

For persons facing civil commitment after dismissal of felony charges based on incompetent to stand trial on the grounds that the person committed acts constituting a felony and due to a mental disorder is likely to commit similar acts, the court must determine whether the person was charged with a violent felony and whether the person committed acts constituting a violent felony. If the court so finds, the length of commitment must be until such time that the person no longer meets grounds for involuntary commitment, subject to six-month court reviews. At the court review, the court must continue the commitment if the facility presents prima facie evidence, except that the court must conduct a full evidentiary hearing if the committed person presents proof that the person’s condition so changed that the person no longer meets grounds for civil commitment. The committed person must be provided with counsel upon filing of a six-month review petition.

The PSRP must provide advice to DSHS regarding persons detained for an indefinite period under the involuntary treatment act. DSHS must notify the PSRP at least 30 days before releasing such an individual. The PSRP must report to the Legislature by December 1, 2014, on whether further changes in the law are appropriate concerning such individuals.

The superintendent must provide 30 days' advance notice to the prosecuting attorney in the county where the criminal charges were dismissed whenever the superintendent determines to release a person committed on the basis that the person committed a felony classified as a sex, violent, or felony harassment offense, and, due to a mental disorder, presents a substantial likelihood of repeating similar acts; or provide immediate notice to the prosecuting attorney if such a person escapes.

When a person committed as criminally insane submits a direct petition for release to the court, the petition must be served upon the court, prosecuting attorney, and Secretary of DSHS. Upon receipt of service, the Secretary must determine whether reasonable grounds exist for release using the same procedure as if the petition was originally submitted to the Secretary, and provide the recommendation to all parties and the court.

When filing a release petition for a person committed as criminally insane who will be transferred upon release to a correctional facility to serve a sentence for a class A felony, the petitioner must show that the person's mental disease or defect is manageable within a correctional facility, but need not prove that the person does not present a substantial danger to other persons or a substantial likelihood of committing criminal acts that jeopardize public safety or security if released.

Staff Summary of Public Testimony Engrossed Second Substitute House Bill (Human Services & Corrections): PRO: There was great, bipartisan work done on this bill. This bill concerns persons who committed violent crimes but cannot be prosecuted and do not receive the help they need from the civil system. We do not object to adding provisions from the Senate bill related to persons committed as criminally insane. We can do a better job treating the mental illnesses of persons whose violent felony charges were dismissed based on incompetent to stand trial and provide them with more continuity of care. The bill provides for a full civil trial at the outset of the commitment process. Please amend the bill to allow misdemeanor defendants whose criminal charges are dismissed based on incompetent to stand trial to be transported to state hospitals or evaluation and treatment facilities. The fiscal impact of the bill is likely to be lower than stated. This bill takes a small but important step in the direction toward preventing violence.

CON: Please restore provisions that would provide community services to persons with developmental disabilities. This bill would substantially impact an already overburdened system, increasing risk of harm. The bill must be amended to avoid due process violations. The state cannot shift the burden of proof onto committed persons to establish a change in their condition. The best way to enhance public safety is to adequately fund mental health treatment. Do not waste public money on appellate litigation by passing a constitutionally flawed bill. Psychiatric drugs have terrible side effects and neither cure mental illness nor prevent violence.

OTHER: There is significant confusion about responsibility for misdemeanor defendants whose charges are dismissed based on incompetent to stand trial. The emergency room at Harborview admitted over 30 patients for whom neither the regional support network or the state hospital claim responsibility. We do not have adequate facilities for this and funding must be provided for the care of these patients. There are limited involuntary treatment beds in the community and state hospitals. We appreciate the language added in the House that would authorize use of the Offender Re-entry Community Safety program for patients to provide intensive treatment and supervision after release. The lack of state hospital beds means any increases in state hospital responsibility requires opening and staffing an additional ward.

Staff Summary of Public Testimony (Ways & Means): PRO: This bill will save money by addressing the most violent offenders. The bill addresses so-called gap cases where individuals who commit violent felonies are found incompetent to stand trial but are not able to be held on a civil commitment. We do not believe there is much fiscal risk; over time this bill will save the state money.

CON: This bill is inviting lawsuits and has elements that are unconstitutional because it shifts the burden of proof off the state.

OTHER: We need to provide more oversight on these offenders if they are released into the community. DSHS is exploring a less restrictive option other than maintaining them in the state hospital. The alternative model must be agreed to by the court, with a court order, and any non-compliance by the individual must result in them being brought back in. The individuals at issue here are fairly dangerous individuals. Our concerns are primarily around staff safety and the safety of others on the hospital floor.