AN ACT Relating to commitment of mentally disordered sexually dangerous persons; amending RCW 71.05.320; reenacting and amending RCW 71.05.020; adding a new chapter to Title 71 RCW; and adding a new section to chapter 71.05 RCW.

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

NEW SECTION. Sec. 1. The provisions of this chapter are intended by the legislature to:

(1) Provide treatment to mentally disordered sexually dangerous persons to reduce the likelihood that those persons will reoffend;

(2) Protect the public from the relatively small group of individuals who suffer from mental disorders, have committed sexual offenses, and present a substantial risk of committing future sexual offenses;

(3) Encourage individuals found to be mentally disordered sexually dangerous persons to participate in treatment to permit a safe return to the community; and

(4) Safeguard individual rights while protecting the public from this special class's dangerous propensities.

NEW SECTION. Sec. 2. This chapter applies only to mentally disordered sexually dangerous persons, as defined in section 3 of this act, who are charged with crimes or offenses committed after the effective date of this act.

NEW SECTION. Sec. 3. For the purposes of this chapter:

(1) "Mentally disordered sexually dangerous person" means a person suffering from a mental disorder, as defined in RCW 71.05.020(2), who has committed a sexual offense and who presents a substantial likelihood of committing future sexual offenses.

(2) "Substantial likelihood of committing future sexual offenses" means that there is a substantial risk that a person will again commit a sexual offense, as evidenced by sexually assaultive behavior or communicated threats to commit sexually assaultive behavior which causes physical harm to another person or which places another person, other persons, or target group in reasonable fear of sustaining such harm: PROVIDED, HOWEVER, That if the behavior consists of threats of death or serious bodily harm, the threat need not be transmitted to the intended victim or target group, nor does the intended victim or target group need to be placed in reasonable fear of sustaining such harm.

(3) "Sexual offense" means any violation of the following in this state or a substantially equivalent crime in another state:

!tp1,1,1 @beCRIME@ee!tj1!tr@beRCW@ee!tj1!tr@beCLASSIFICATION@ee

!ix(a) Rape in the first degree!tj1!tr9A.44.040!trClass!sc ,1A!sc ,1felony

!ix(b) Rape in the second degree!tj1!tr9A.44.050!trClass!sc ,1B!sc ,1felony

!ix(c) Rape in the third degree!tj1!tr9A.44.060!trClass!sc ,1C!sc ,1felony

!ix(d) Rape of a child in the

!sc ,4first degree!tj1!tr9A.44.073!trClass!sc ,1A!sc ,1felony

!ix(e) Rape of a child in the

!sc ,4second degree!tj1!tr9A.44.076!trClass!sc ,1B!sc ,1felony

!ix(f) Rape of a child in the

!sc ,4third degree!tj1!tr9A.44.079!trClass!sc ,1C!sc ,1felony

!ix(g) Child molestation in the

!sc ,4first degree!tj1!tr9A.44.083!trClass!sc ,1B!sc ,1felony

!ix(h) Child molestation in the

!sc ,4second degree!tj1!tr9A.44.086!trClass!sc ,1B!sc ,1felony

!ix(i) Child molestation in the

!sc ,4third degree!tj1!tr9A.44.089!trClass!sc ,1C!sc ,1felony

!ix(j) Sexual misconduct with a

!sc ,4minor in the first degree!tj1!tr9A.44.093!trClass!sc ,1C!sc ,1felony

!ix(k) Sexual misconduct with a

!sc ,4minor in the second degree!tj1!tr9A.44.096!trGross!sc ,1misdemeanor

!ix(l) Indecent liberties!tj1!tr9A.44.100!trClass!sc ,1B!sc ,1felony

!ix(m) Incest in the first degree!tj1!tr9A.64.020(1)!trClass!sc ,1B!sc ,1felony

!sc ,4Where "descendant" is less

!sc ,4than eighteen years of age

!sc ,4and either child, stepchild,

!sc ,4or adopted child of offender.

!ix(n) Incest in the second degree!tj1!tr9A.64.020(2)!trClass!sc ,1C!sc ,1felony

!sc ,4Where "descendant" is less

!sc ,4than eighteen years of age

!sc ,4and either child, stepchild

!sc ,4or adopted child of offender.

!ix(o) Criminal attempt!tj1!tr9A.28.020!trOne!sc ,1step!sc ,1lower

!sc ,4Where crime attempted is!tj2!trthan!sc ,1crime

!sc ,4enumerated above in!tj2!trattempted

!sc ,4subsections (a) through (n).

!ix(p) Criminal solicitation!tj1!tr9A.28.030!trSame!sc ,1as!sc ,1attempt

!sc ,4Where crime solicited is

!sc ,4enumerated above in

!sc ,4subsections (a) through (n).

!ix(q) Murder in the first degree!tj1!tr9A.32.030!trClass!sc ,1A!sc ,1felony

!sc ,4Where crime committed or!tj1!tr(1)(c),!sc ,1(2)

!sc ,4attempted is either rape in

!sc ,4the first or second degree.

!ix(r) Murder in the first degree!tj1!tr9A.32.050(1)(b)!trClass!sc ,1A!sc ,1felony

!sc ,4Where felony committed or

!sc ,4attempted is enumerated

!sc ,4above in subsections (a)

!sc ,4through (n).

!ix(s) Homicide by abuse!tj1!tr9A.32.055!trClass!sc ,1A!sc ,1felony

!ix(t) Assault in the second

!sc ,4 degree!tj1!tr9A.36.021(1)(e)!trClass!sc ,1B!sc ,1felony

!sc ,4Where felony intended is

!sc ,4enumerated above in

!sc ,4subsections (a) through (n).

!ix(u) Kidnapping in the first

!sc ,4or second degree!tj1!tr9A.40.020(1)(b)!trClass!sc ,1A!sc ,1felony

!sc ,4Where felony intended is!tj1!tr9A.40.030!trClass!sc ,1B!sc ,1felony

!sc ,4enumerated above in

!sc ,4subsections

!sc ,4(a) through (n).

!ix(v) Burglary in the first

!sc ,4degree!tj1!tr9A.52.020!trClass!sc ,1A!sc ,1felony

!sc ,4Where felony intended is

!sc ,4enumerated above in

!sc ,4subsections (a) through (n).

!ix(w) Burglary in the second!tj1!tr9A.52.030!trClass!sc ,1B!sc ,1felony

!sc ,4degree

!sc ,4Where felony intended

!sc ,4is enumerated above in

!sc ,4subsections (a) through (n).

!ix(x) Any other felony

!sc ,4which was committed to

!sc ,4further the commission of one

!sc ,4of the offenses

!sc ,4enumerated above in

!sc ,4subsections

!sc ,4(a) through (n).

NEW SECTION. Sec. 4. (1) When any person is charged in the superior court in this state with a sexual offense and there is probable cause to believe that such person is a mentally disordered sexually dangerous person, the prosecuting attorney may file a petition at the conclusion of the criminal proceeding alleging that the respondent is a mentally disordered sexually dangerous person and stating sufficient facts to support the allegation. The petition, if not sooner filed, must be filed and served on the respondent or the respondent's attorney within ten days after criminal charges are dismissed, with or without prejudice, or an order of acquittal is entered. If the person is convicted or found not guilty by reason of insanity at the conclusion of the criminal proceeding, the prosecuting attorney may file and serve the petition on the respondent or the respondent's attorney, if not sooner filed, within ten days after the respondent's release from total confinement or state custody.

(2) On application by the prosecuting attorney and upon a showing of probable cause, the court may issue an order of civil detention pending the preliminary hearing. In no case may the order of civil detention exceed a period of ten days.

At any time during the first ten-day order of civil detention, the respondent may petition for his or her release. The court must release the respondent on appropriate terms and conditions unless the court is satisfied no terms and conditions would adequately protect the public or the detained person. The prosecuting attorney may apply for extensions of the ten-day order of civil detention.

(3) If the defendant is convicted or has previously pleaded guilty to such charge, the court shall pronounce judgment and enter the sentence as in other criminal cases.

(4) If the defendant is acquitted or found incompetent pursuant to chapter 10.77 RCW, and a petition has been filed alleging the respondent is a mentally disordered sexually dangerous person, the court shall then hear the allegation that the respondent is such a person. Acquittal on the criminal charge or a finding of incompetency to stand trial shall not operate to suspend the hearing on the allegation that the respondent is a mentally disordered sexually dangerous person. The respondent may be detained in the county jail or other county facility pending the preliminary hearing on the petition.

NEW SECTION. Sec. 5. At a preliminary hearing on the petition alleging that the respondent is a mentally disordered sexually dangerous person, the court may require the testimony of two qualified mental health professionals who have examined the respondent. There is no right to a jury trial at the preliminary hearing. If the court finds that there are reasonable grounds to believe the respondent is a mentally disordered sexually dangerous person, the court shall order that the respondent be confined at the nearest state institution designed for the custody, evaluation, care, and treatment of mentally disordered sexually dangerous persons. The commitment order shall be for a period of up to ninety days for the purposes of observation, evaluation, and treatment. The respondent may be detained in the county jail or other county facility pending execution of the commitment order.

NEW SECTION. Sec. 6. Upon completion of the ninety-day observation, evaluation, and treatment period, the state institution shall return the respondent to the court, together with a written report of findings by at least two duly licensed physicians or clinical psychologists on the issue of whether the respondent is a mentally disordered sexually dangerous person and the facts upon which their opinions are based. The reporting professionals shall have access to all medical, psychological, and criminal records and reports concerning the respondent.

NEW SECTION. Sec. 7. After the state institution's report has been filed, a hearing shall be held to determine whether the respondent is a mentally disordered sexually dangerous person. If the respondent is found to be a mentally disordered sexually dangerous person, the court shall commit the respondent to the custody of the secretary of social and health services for designation of the appropriate facility for detention, care, and treatment of the mentally disordered sexually dangerous person. If the respondent is found not to be a mentally disordered sexually dangerous person, the court may discharge the respondent as the case may merit. The state has the burden of proving beyond a reasonable doubt that the respondent is a mentally disordered sexually dangerous person.

NEW SECTION. Sec. 8. A jury trial may be demanded for the initial hearing to determine whether the respondent is a mentally disordered sexually dangerous person following the ninety-day period of observation, evaluation, and treatment. The demand must be in writing and filed with the court within ten days after filing of the petition alleging the respondent to be a mentally disordered sexually dangerous person.

NEW SECTION. Sec. 9. (1) At every stage of the proceedings under this chapter, a person subject to the provisions of this chapter shall be entitled to the assistance of counsel and, if the person is indigent, the court shall appoint counsel to assist the person. A person may waive his or her right to counsel only if the court specifically finds that the waiver was knowingly, intelligently, and voluntarily made. Nothing in this chapter shall be construed to prevent the respondent or his or her attorney from producing evidence or witnesses at any proceeding conducted under this chapter. Upon request, the court may appoint an expert to testify on behalf of the respondent.

(2) At any proceeding conducted under this chapter, evidence of the involvement by the respondent in any sexual offense, the respondent's entire mental health history, and responsiveness to treatment, if any, is relevant and admissible. To establish the commission of a sexual offense for purposes of this subsection, the state need only prove the actus reus, and need not establish the requisite mens rea.

(3) The proceedings under this chapter shall be civil in nature. The civil rules and rules of appellate procedure as now or hereafter amended shall apply to all these proceedings except as otherwise provided in this chapter.

NEW SECTION. Sec. 10. (1) The physician-patient privilege or the psychologist-client privilege shall be deemed waived in proceedings under this chapter when a court of competent jurisdiction in its discretion determines that such waiver is necessary to protect either the detained person or the public.

(2) The waiver of a privilege under this section is limited to records or testimony relevant to evaluation of the detained person for purposes of a proceeding under this chapter. Upon motion by the detained person or on its own motion, the court shall examine a record or testimony offered by the state to determine whether it is within the scope of the waiver.

(3) The recordmaker shall not be required to testify in order to introduce medical or psychological records of the detained person so long as the requirements of RCW 5.45.020 are met. However, portions of the records containing opinions about the detained person's mental state or propensities to commit sexual offenses must be deleted from the records unless the person making such conclusions is available for cross-examination.

NEW SECTION. Sec. 11. A mentally disordered sexually dangerous person committed under this chapter to the custody of the secretary of social and health services for care and treatment shall be retained by the superintendent of the state institution involved until, in the superintendent's or his or her designee's opinion, the committed person has recovered to the extent that the patient no longer presents a substantial likelihood of committing future sexual offenses and is released as hereinafter provided. The person's amenability to treatment, or lack of it, may be used as evidence by the superintendent and his or her designees, and the court, when determining whether the detained person presents a substantial likelihood of committing future sexual offenses.

(2) Under no circumstances may a person civilly detained under this chapter be released from custody without a court order as set forth in section 12 of this act.

NEW SECTION. Sec. 12. (1) The detained person or the professional persons responsible for the care and treatment of the person, or both, may file an application in writing with the court setting forth facts showing that a committed mentally disordered sexually dangerous person no longer presents a substantial likelihood of committing future sexual offenses. The application may request conditional release or final discharge from the institution. The application must be accompanied by a report from the professional persons responsible for the detained person's care and treatment. If deemed appropriate, the report shall contain any proposed terms and conditions upon which it is reasonably believed that the person can be conditionally released. The court shall set a date for hearing within a reasonable time following filing of the application and shall consider the treating professionals' report and any other information submitted by or on behalf of the applicant.

(2) The issue to be determined at the hearing is whether the person may be conditionally released or receive a final discharge without presenting a substantial likelihood of committing future sexual offenses. The prosecuting attorney shall represent the state at these hearings and shall have the right to have the person examined by an expert or professional person of his or her choice. The hearing shall be before the court that initially ordered the person's commitment and there shall be no right to a jury trial.

(3) After the hearing, the court shall rule on the application for conditional release or final discharge. If the patient is found to no longer present a substantial likelihood of committing future sexual offenses, the court shall order that he or she be discharged. If the court finds that the patient appears no longer to present a substantial likelihood of committing future sexual offenses but that it is unable to determine that the person has sufficiently recovered under conditions of institutional care, the court shall enter an order permitting the person to return to the community subject to the conditions and supervision that, in the court's opinion, will adequately protect the public. If the court finds that the person continues to present a substantial likelihood of committing future sexual offenses the person shall be remitted to the custody of the secretary of social and health services.

(4) The burden of proof at these hearing shall be on the detained person to show by a preponderance of the evidence that he or she no longer presents a substantial likelihood of committing future sexual offenses.

(5) Any person whose application for conditional release or final discharge has been denied may reapply no sooner than six months from the date of denial.

NEW SECTION. Sec. 13. (1) Each person committed to a hospital, or other facility, or conditionally released under this chapter, shall have an examination of his or her mental condition and an evaluation of his or her likelihood of committing future sexual offenses. This examination and evaluation shall be made by one or more experts or professional persons at least once every six months and a written report of this examination and evaluation shall be made and furnished to the court and the involved parties prior to the next scheduled release hearing, if any.

(2) If the person has been conditionally released, the expert's or professional person's periodic report shall also state whether the person is adhering to the terms and conditions of his or her conditional release.

(3) Each person conditionally released under this chapter shall have his or her case reviewed by the court that conditionally released the person no later than one year after the release and no later than every two years thereafter, the time to be scheduled by the court. Review may occur in a shorter time or more frequently if the court, in its discretion, so determines or on the motion of the prosecuting attorney. The sole question to be determined by the court is whether the person shall continue to be conditionally released. In making its determination, the court shall be aided by the periodic reports required by subsections (1) and (2) of this section, and any other relevant evidence presented. When the court is satisfied that the conditionally released person no longer presents a substantial likelihood of committing future sexual offenses, the court shall order the final discharge of the person.

NEW SECTION. Sec. 14. (1) Any person submitting reports pursuant to section 13 of this act, the secretary of the state agency supervising the person, or the prosecuting attorney may petition the court to, or the court on its own motion may, schedule an immediate hearing for the purpose of revoking or modifying the terms of conditional release if the petitioner or the court reasonably believes the released person is failing to adhere to the terms and conditions of his or her conditional release or is in need of additional care and treatment.

(2) If the prosecuting attorney, the secretary of the state agency supervising the person, or the court, after examining the report or reports submitted to them pursuant to section 13 of this act, or based on other information received by them, reasonably believes that a conditionally released person is failing to adhere to the terms and conditions of his or her conditional release, the court or secretary may order that the conditionally released person be apprehended by an appropriate law enforcement agency and taken into custody until a hearing can be scheduled to determine the facts and whether the person's conditional release should be revoked or modified. The court shall be notified before the close of the next judicial day of the apprehension.

(3) The court, upon receiving notification of the apprehension, shall promptly schedule a hearing. The issue to be determined is whether the conditionally released person did or did not adhere to the terms and conditions of his or her release. The burden shall be on the prosecuting attorney to show one or more violations of the terms and conditions of the release by a preponderance of the evidence. There is no right to a jury trial at the revocation or modification hearing. According to the court's determination at such hearing, the conditionally released person shall either continue to be conditionally released on the same or modified conditions, or the person's conditional release shall be revoked and the person shall be recommitted, subject to release only in accordance with the provisions of this chapter.

NEW SECTION. Sec. 15. If a mentally disordered sexually dangerous person escapes from a state institution or disappears while on conditional release, the superintendent or other supervising professionals shall notify, as appropriate, local law enforcement officers, other governmental agencies, the person's relatives, and any other appropriate persons with the information necessary for the public safety or to assist in the apprehension of the person. The decision to disclose or not to specific individuals or entities shall not result in civil liability for the supervising professionals or their employees so long as the decision was reached in good faith and without gross negligence.

NEW SECTION. Sec. 16. The records, files, and other written information prepared by the department of corrections or the department of social and health services for individuals committed under this chapter shall be made available to either department upon request, or the prosecuting attorney, the court, or any treating professional as appropriate to administration of this chapter. Any other entity or individual may petition the court for release of these records, files, or other written information.

NEW SECTION. Sec. 17. The department of social and health services shall be responsible for all costs relating to the evaluation and treatment of persons committed to their custody under any provision of this chapter, and for the logistical and supportive services that pertain. Reimbursement may be obtained by the department of social and health services for the cost of care and treatment of persons committed to its custody pursuant to RCW 43.20B.330 through 43.20B.370.

Sec. 18. Section 7, chapter 142, Laws of 1973 1st ex. sess. as last amended by section 2, chapter 120, Laws of 1989, section 8, chapter 205, Laws of 1989, and by section 13, chapter 420, Laws of 1989 and RCW 71.05.020 are each reenacted and amended to read as follows:

For the purposes of this chapter:

(1) "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 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;

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

(3) "Likelihood of serious harm" means either: (a) A substantial risk that 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 one's self, (b) a substantial risk that 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: PROVIDED, That if the behavior consists of threats of death or serious bodily harm, then the threat need not be transmitted to the intended victim or target group nor does the intended victim or target group need to be placed in reasonable fear of sustaining such harm, or (c) a substantial risk that 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;

(4) "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;

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

(6) "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 or deranged, if the agency is operated directly by, federal, state, county, or municipal government, or a combination of such governments;

(7) "Private agency" means any person, partnership, corporation, or association not defined as 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;

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

(9) "Department" means the department of social and health services of the state of Washington;

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

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

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

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

(14) "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;

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

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

(17) "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 short term inpatient care to persons suffering from a mental disorder, and which is certified as such by the department of social and health services: PROVIDED, That a physically separate and separately operated portion of a state hospital may be designated as an evaluation and treatment facility: PROVIDED FURTHER, That a facility which is part of, or operated by, the department of social and health services or any federal agency will not require certification: AND PROVIDED FURTHER, That no correctional institution or facility, or jail, shall be an evaluation and treatment facility within the meaning of this chapter;

(18) "Antipsychotic medications," also referred to as "neuroleptics," means that class of drugs primarily used to treat serious manifestations of mental illness associated with thought disorders and currently includes phenothiazines, thioxanthenes, butyrophenone, dihydroindolone, and dibenzoxazipine.

(19) "Developmental disability" means that condition defined in RCW 71A.10.020(2);

(20) "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;

(21) "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;

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

(23) "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;

(24) "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;

(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, and a projected possible date for discharge from involuntary confinement; and

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

Sec. 19. Section 37, chapter 142, Laws of 1973 1st ex. sess. as last amended by section 15, chapter 420, Laws of 1989 and RCW 71.05.320 are each amended to read as follows:

(1) If the court or jury finds that grounds set forth in RCW 71.05.280 have been proven and that the best interests of the person or others will not be served by a less restrictive treatment which is an alternative to detention, the court shall remand him or her to the custody of the department of social and health services or to a facility certified for ninety day treatment by the department of social and health services for a further period of intensive treatment not to exceed ninety days from the date of judgment: PROVIDED, That if the grounds set forth in RCW 71.05.280(3) are the basis of commitment, then the period of treatment may be up to but not exceed one hundred eighty days from the date of judgment in a facility certified for one hundred eighty day treatment by the department. The court or jury shall consider dangerousness to self or others when determining whether the best interests of the person or others will not be served by a less restrictive alternative as an alternative to detention. If the committed person is developmentally disabled and has been determined incompetent pursuant to RCW 10.77.090(3), and the best interests of the person or others will not be served by a less-restrictive treatment which is an alternative to detention, the court shall remand him or her to the custody of the department of social and health services or to a facility certified for one hundred eighty-day treatment by the department. When appropriate and subject to available funds, treatment and training of such persons must be provided in a program specifically reserved for the treatment and training of developmentally disabled persons. A person so committed shall receive habilitation services pursuant to an individualized service plan specifically developed to treat the behavior which was the subject of the criminal proceedings. Said treatment program shall be administered by developmental disabilities professionals and others trained specifically in the needs of developmentally disabled persons. 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. An order for treatment less restrictive than involuntary detention may include conditions, and if such conditions are not adhered to, the designated mental health professional or developmental disabilities professional may order the person apprehended under the terms and conditions of RCW 71.05.340 as now or hereafter amended.

If the court or jury finds that grounds set forth in RCW 71.05.280 have been proven, but finds that treatment less restrictive than detention will be in the best interest of the person or others, then the court shall remand him to the custody of the department of social and health services or to a facility certified for ninety day treatment by the department of social and health services or to a less restrictive alternative for a further period of less restrictive treatment not to exceed ninety days from the date of judgment: PROVIDED, That if the grounds set forth in RCW 71.05.280(3) are the basis of commitment, then the period of treatment may be up to but not exceed one hundred eighty days from the date of judgment.

(2) Said person shall be released from involuntary treatment at the expiration of the period of commitment imposed under subsection (1) of this section unless the superintendent or professional person in charge of the facility in which he is confined, or in the event of a less restrictive alternative, the designated mental health professional or developmental disabilities professional, files a new petition for involuntary treatment on the grounds that the committed person;

(a) During the current period of court ordered treatment: (i) Has threatened, attempted, or inflicted physical harm upon the person of another, or substantial damage upon the property of another, and (ii) as a result of mental disorder or developmental disability presents a likelihood of serious harm to others; or

(b) Was taken into custody as a result of conduct in which he attempted or inflicted serious physical harm upon the person of another, and continues to present, as a result of mental disorder or developmental disability a likelihood of serious harm to others; or

(c) Is in custody pursuant to RCW 71.05.280(3) and as a result of mental disorder or developmental disability presents a substantial likelihood of repeating similar acts considering the charged criminal behavior, life history, progress in treatment, and the public safety; or

(d) Continues to be gravely disabled.

If the conduct required to be proven in subsections (b) and (c) of this section was found by a judge or jury in a prior trial under this chapter, it shall not be necessary to reprove that element. Such new petition for involuntary treatment shall be filed and heard in the superior court of the county of the facility which is filing the new petition for involuntary treatment unless good cause is shown for a change of venue. The cost of the proceedings shall be borne by the state.

The hearing shall be held as provided in RCW 71.05.310, and if the court or jury finds that the grounds for additional confinement as set forth in this subsection are present, the court may order the committed person returned for an additional period of treatment not to exceed one hundred eighty days from the date of judgment. At the end of the one hundred eighty day period of commitment, the committed person shall be released unless a petition for another one hundred eighty day period of continued treatment is filed and heard in the same manner as provided herein above. Successive one hundred eighty day commitments are permissible on the same grounds and pursuant to the same procedures as the original one hundred eighty day commitment. No person committed as herein provided may be detained unless a valid order of commitment is in effect. No order of commitment can exceed one hundred eighty days in length.

NEW SECTION. Sec. 20. A new section is added to chapter 71.05 RCW to read as follows:

At any hearing under this chapter, the person's entire mental health history is relevant and admissible.

NEW SECTION. Sec. 21. Sections 1 through 17 of this act shall constitute a new chapter in Title 71 RCW.

NEW SECTION. Sec. 22. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.