Background: Designated mental health professionals (DMHPs) are the gatekeepers of the mental health civil commitment system. Under the Involuntary Treatment Act (ITA), a person may be detained by a DMHP following an investigation if the DMHP determines that the person, as the result of a mental disorder, presents a likelihood of serious harm, or is gravely disabled. Likelihood of serious harm means a substantial risk that the person will inflict serious harm on himself, herself, or others as evidenced by behavior which caused such harm or places another person in reasonable fear of sustaining such harm. Gravely disabled means that the person is in danger of serious physical harm from a failure to provide for that person's essential human needs of health or safety, or manifests severe deterioration in routine functioning and is not receiving such care as is essential for the person's health or safety.

A DMHP's investigation must consist of an evaluation of the specific facts supporting detention and an evaluation of the credibility of any persons providing information to support detention. A personal interview with the person is required unless the person refuses an interview. A DMHP may not initiate involuntary detention if it appears the person will voluntarily seek appropriate treatment. A DMHP must consider all reasonably available information from credible witnesses, including family members, landlords, neighbors, or others with a significant history of involvement with the person. A DMHP must also consider reasonably available treatment records, including records of prior commitment, prior determinations of competency to stand trial or criminal insanity, and any history of violent acts.

If the likelihood of serious harm is imminent, or if the person is in imminent danger due to being gravely disabled, the DMHP may immediately cause the person to be detained to a triage facility, crisis stabilization unit, evaluation and treatment facility, or emergency department. If the likelihood of serious harm or grave disability is not imminent, the DMHP must obtain a judicial order authorizing detention and certifying that the petition is supported by probable cause. The judicial order may be based on sworn telephonic testimony or the DMHP's sworn declaration, and is issued ex parte.

Initial detention under the ITA is for 72 hours, excluding weekends and holidays, during which time the detained person is provided with appointed counsel or allowed to retain counsel. Before the end of the 72-hour period, the person must either be released, or the facility providing treatment must file a petition in superior court to extend the detention for up to 14 additional days, and the court must hold a probable cause hearing to determine whether there is cause to issue an order extending the detention. This probable cause hearing is an adversary hearing, governed by the rules of evidence, in which the facility must be represented by the county prosecuting attorney.

Summary of Bill (Recommended Amendments): Beginning July 1, 2017, if a DMHP decides not to initiate detention of a person under the ITA, an immediate family member of the person may petition the superior court for review of the DMHP's decision. The family member must serve notice of the petition on the DMHP, who must provide the court with a written explanation of the basis for not initiating detention of the person within 24 hours. If the court finds probable cause to support initial detention and that the person refused to accept appropriate evaluation and treatment voluntarily, the court may issue an order for initial detention.

For the purposes of this act, immediate family member means spouse, domestic partner, child, stepchild, parent, stepparent, grandparent, or sibling.

The Department of Social and Health Services must contract with the Washington State Institute for Public Policy (WSIPP) to provide a comprehensive study on the utilization and capacity needs for crisis mental health services. The study must include, but is not limited to, (1) a review of the effects of expanded ITA criteria which was enacted by the 2010 and 2013 Legislatures and will be implemented beginning July 1, 2014. The expanded criteria includes the inclusion of family members or others with significant contact and history with the individual to provide information to the DMHP to be used when making a determination about involuntary commitment; (2) a longitudinal study of outcomes and public costs for crisis services compared to involuntary commitments; (3) a determination of the extent to which allowing immediate family members to petition the courts for a review of the DMHP's decision not to detain someone involuntarily would further increase capacity needs of the involuntary commitment system. This determination must include a review of practices in other states regarding third-party initiation of a commitment petition.

A preliminary WSIPP report must be provided by December 1, 2015, and a final report must be provided by December 1, 2016.

This act is null and void if specific funding is not provided in the Omnibus Appropriations Act.

EFFECT OF CHANGES MADE BY WAYS & MEANS COMMITTEE (Recommended Amendments): The implementation of the provision allowing an immediate family member to petition the superior court for review of the DMHP's decision concerning involuntary detainment is delayed to July 1, 2017.

The Department of Social and Health Services must contract with WSIPP to review the effects of expanded ITA criteria from the July 1, 2014, implementation of Chapter 280, Laws of 2010 and Chapter 335, Laws of 2013; outcomes and costs related to crisis intervention compared to involuntary detention; and the impacts on ITA capacity from implementing the provision to allow immediate family members to petition the courts for a review of a DMHP's decision not to detain their loved one involuntarily.

Staff Summary of Public Testimony on Substitute House Bill (Human Services & Corrections): PRO: The fiscal cost of this bill is a sign that the present system isn't working. DMHPs are under a lot of pressure to do bed control, and to consider costs rather just whether there is a mental illness and detention is appropriate. This bill addresses that pressure. When DMHPs do not take action, someone frequently ends up dead. This bill is important for public safety. We agree that the mental health system is severely underfunded, too focused on crisis services, and should be more invested in early intervention. We still, however, need the ITA. Families are very desperate and hurt when they try to get but can't obtain help for their loved ones. The greater the fiscal note, the more of a sign that we need this bill. There are large costs associated with inaction which have not been factored into the fiscal analysis. If more commitments were to happen earlier, that would be a good thing. Judges should be empowered to determine whether commitment is appropriate. Families have a wealth of information. I practiced as a DMHP for 25 years, and it is reasonable to assume that availability of a bed affects commitment decisions at some level. Having a supervisor review detention decisions would not be helpful, because the supervisor would only review what the DMHP puts forward, not what the family knows. The fiscal note seems to be inflated. Much of the cost of treatment expansion has already been paid for as a result of ESSB 5480 (2013).

CON: Involuntary commitment should be informed by the thorough review of professionals with expertise in mental health. A judge without this expertise may feel pressure to order detention just to be on the safe side. We suggest instead that if a DMHP doesn't seek commitment, the family should be empowered to appeal to the DMHP's supervisor, or some other mental health professional (MHP). If the supervisor or MHP doesn't agree, the family member would then have a right to go before a judge. This could result in a faster road to detention. We are prepared to be very flexible, and work with this committee to refine this language. The fiscal impact of this bill will weaken the system, rather than strengthen it. Rather than dozens of cases, the impact is likely to be hundreds of cases entering the system. DMHPs will be called into court by defense to discuss why the case was legally insufficient, and lose six hours of time. The focus has to change from detaining individuals to maintaining the health of persons with mental illness while they are in the community. More effective preventative efforts would have a huge ripple effect in reducing the burdens on the commitment system. Circumventing the DMHP would deprive the court of an objective opinion and assessment of the credibility of witnesses. DMHPs are instructed to prevent inappropriate confinement and safeguard individual rights while balancing these concerns against the safety of the individual and the public. Judges do not have medical or psychiatric expertise, and will be inclined to detain most individuals. The system has obvious problems which this bill does not address, including lack of oversight or monitoring in the community. Individuals, once they are detained, are not held long enough to truly get better. We should have more input from families at the stage where they are released. DMHPs do not concern themselves with bed control in the counties where I have worked. Some cases end tragically, but this is not as frequent as has been represented. DMHPs make good decisions overall. We cannot prevent all tragedies without sacrificing civil rights to a greater degree than I would be comfortable with.

OTHER: We suggest that the definition of those eligible to petition the court under this bill should be expanded to include attorneys-in-fact and court-appointed guardians, in addition to immediate family members.

Staff Summary of Public Testimony on Substitute House Bill (Ways & Means): PRO: There were dozens of phone calls trying to get our loved one into services. If he would have received appropriate intervention and treatment, numerous costs could have been avoided including crisis intervention costs, hospitalizations, and a high speed car chase that ended in a crash. This bill could save lives and money, while reserving civil liberties. It gives family members hope that they might have a chance to better meet the needs of their loved ones. This is a critical bill to families. If this bill was in effect last year, our loved one could still be alive and back to work. This bill is about life and death issues.

CON: We all have a common goal of a functioning mental health system that serves the people adequately. However, the system needs medical expertise. It is a concern that a judge may feel pressured to commit someone involuntarily without the input of the professional experts. We have heard lots of desperation from families and loved ones explaining situations where it is hard to understand why a loved one was not committed involuntarily. It is difficult to know if it is a quality issue here or if a DMHP is making decisions because they do not have anywhere to put people. Please keep the funding in place that the Senate currently has budgeted for the expanded mental health capacity, without this bill. We believe the fiscal note underestimates the costs that this bill will have. This bill will weaken the current system because the time a DMHP will be spending filling out paperwork and sitting in court defending their work is time that the DMHP is not on the street doing their job. We already have new criteria for involuntary treatment that goes into effect in July 2014, and it includes family input on the behavior and history of the individuals. This will better serve the purpose trying to be achieved by this bill. Money needs to go to outpatient treatment rather than inpatient treatment. If resources are in the community, individuals can be observed early on by case managers so action can be taken before deterioration. There is no requirement for the family to hire an attorney to petition the courts. This can complicate and tie up the court process even further.