S-3519.2 _______________________________________________
SENATE BILL 6214
_______________________________________________
State of Washington 55th Legislature 1998 Regular Session
By Senators Long, Hargrove, McDonald, Deccio, Franklin, Stevens, Strannigan, Wood, Schow, Swecker, Hale, Sellar, Thibaudeau, Haugen, Winsley and Oke
Read first time 01/13/98. Referred to Committee on Human Services & Corrections.
AN ACT Relating to mental illness; amending RCW 71.05.010, 71.05.020, 71.05.030, 71.05.035, 71.05.130, 71.05.150, 71.05.200, 71.05.210, 71.05.250, 71.05.280, 71.05.330, 71.05.340, 71.05.370, 71.05.390, 71.05.530, 71.05.560, 10.77.005, 10.77.010, 10.77.020, 10.77.030, 10.77.040, 10.77.060, 10.77.070, 10.77.080, 10.77.090, 10.77.110, 10.77.140, 10.77.150, 10.77.180, 10.77.190, 10.77.200, 10.77.210, 10.77.240, and 10.97.030; adding new sections to chapter 71.05 RCW; adding new sections to chapter 10.77 RCW; creating new sections; recodifying RCW 10.77.005; repealing RCW 71.05.015, 71.05.080, and 71.05.490; making an appropriation; providing effective dates; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1. It is the intent of the legislature to: (1) Clarify that it is the nature of a person's current conduct, current mental condition, history, and likelihood of committing future acts that pose a threat to public safety or himself or herself, rather than simple categorization of offenses, that should determine treatment procedures and level; (2) improve and clarify the sharing of information between the mental health and criminal justice systems; and (3) provide additional opportunities for mental health treatment for persons whose conduct threatens himself or herself or threatens public safety and has led to contact with the criminal justice system.
The legislature recognizes that a person can be incompetent to stand trial, but does not present a likelihood of serious harm. The legislature does not intend to create a presumption that a person who is found incompetent to stand trial presents a likelihood of serious harm requiring civil commitment.
Sec. 2. RCW 71.05.010 and 1997 c 112 s 2 are each amended to read as follows:
The provisions of this chapter are intended by the legislature:
(1)
To ((end)) prevent inappropriate, indefinite commitment of
mentally disordered persons and to eliminate legal disabilities that arise from
such commitment;
(2) To provide prompt evaluation and timely and appropriate treatment of persons with serious mental disorders;
(3) To safeguard individual rights;
(4) To provide continuity of care for persons with serious mental disorders;
(5) To encourage the full use of all existing agencies, professional personnel, and public funds to prevent duplication of services and unnecessary expenditures;
(6) To encourage, whenever appropriate, that services be provided within the community;
(7) To protect the public safety.
Sec. 3. RCW 71.05.020 and 1997 c 112 s 3 are each amended to read as follows:
For the purposes of this chapter:
(1)
"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;
(2) "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) "County designated mental health professional" means a mental health professional appointed by the county to perform the duties specified in this chapter;
(4) "Custody" means involuntary detention under the provisions of this chapter or chapter 10.77 RCW, uninterrupted by any period of unconditional release from a facility providing involuntary care and treatment;
(((4)))
(5) "Department" means the department of social and health
services;
(((5)))
(6) "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;
(((6)))
(7) "Developmental disability" means that condition defined in
RCW 71A.10.020(2);
(((7)))
(8) "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;
(((8)))
(9) "Gravely disabled" means: (a) A condition in which
a person, as a result of a mental disorder((: (a))) (i) 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)))
(ii) 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; or (b) a person who has met the criteria set forth in RCW
10.77.090(1)(c);
(((9)))
(10) "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;
(((10)))
(11) "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, 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;
(((11)))
(12) "Judicial commitment" means a commitment by a court
pursuant to the provisions of this chapter;
(((12)))
(13) "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((, (b) a substantial risk
that)); (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 (c) a
substantial risk that)); 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
(((13)))
(b) The individual has threatened the physical safety of another and has a
history of one or more violent acts as defined in RCW 10.77.010. For the
purposes of this subsection "history" refers to the period of time
ten years prior to the filing of a petition under this chapter, excluding any
time spent in confinement in a mental health facility or as a result of a
criminal conviction;
(14) "Mental disorder" means any organic, mental, or emotional impairment which has substantial adverse effects on an individual's cognitive or volitional functions;
(((14)))
(15) "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;
(((15)))
(16) "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;
(((16)))
(17) "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;
(((17)))
(18) "Professional person" ((shall)) means a
mental health professional, as above defined, 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;
(((18)))
(19) "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;
(((19)))
(20) "Psychologist" means a person who has been licensed as a
psychologist pursuant to chapter 18.83 RCW;
(((20)))
(21) "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;
(((21)))
(22) "Resource management services" has the meaning given in
chapter 71.24 RCW;
(((22)))
(23) "Secretary" means the secretary of the department of
social and health services, or his or her designee;
(((23)))
(24) "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.
Sec. 4. RCW 71.05.030 and 1985 c 354 s 31 are each amended to read as follows:
Persons
suffering from a mental disorder may not be involuntarily committed for
treatment of such disorder except pursuant to provisions of this chapter,
chapter 10.77 RCW ((or its successor)), chapter 71.06 RCW, chapter 71.34
RCW, transfer pursuant to RCW 72.68.031 through 72.68.037, or pursuant to court
ordered evaluation and treatment not to exceed ninety days pending a criminal
trial or sentencing.
Sec. 5. RCW 71.05.035 and 1989 c 420 s 2 are each amended to read as follows:
((With
respect to chapter 420, Laws of 1989,)) The legislature finds that
among those persons who endanger the safety of others by committing ((felony))
crimes are a small number of persons with developmental disabilities. While
their conduct is not typical of the vast majority of persons with developmental
disabilities who are responsible citizens, for their own welfare and for the
safety of others the state may need to exercise control over those few
dangerous individuals who are developmentally disabled, have been charged with
((felony)) crimes that involve a threat to public safety, and
have been found either incompetent to stand trial or not guilty by reason of
insanity. The legislature finds, however, that the use of civil commitment
procedures under chapter 71.05 RCW to effect state control over dangerous
developmentally disabled persons has resulted in their commitment to
institutions for the mentally ill. The legislature finds that existing
programs in mental institutions may be inappropriate for persons who are
developmentally disabled because the services provided in mental institutions
are oriented to persons with mental illness, a condition not necessarily
associated with developmental disabilities. Therefore, the legislature
believes that, where appropriate, and subject to available funds, persons with
developmental disabilities who have been charged with ((felony)) crimes that
involve a threat to public safety and have been found incompetent to stand
trial or not guilty by reason of insanity should receive state services
addressing their needs, that such services must be provided in conformance with
an individual habilitation plan, and that their initial treatment should be
separate and discrete from treatment for persons involved in any other
treatment or habilitation program in a manner consistent with the needs of
public safety.
Sec. 6. RCW 71.05.130 and 1991 c 105 s 3 are each amended to read as follows:
In any judicial proceeding for involuntary commitment or detention,
or in any proceeding challenging such commitment or detention, the prosecuting
attorney for the county in which the proceeding was initiated shall represent
the individuals or agencies petitioning for commitment or detention and shall
defend all challenges to such commitment or detention: PROVIDED, That ((after
January 1, 1980,)) the attorney general shall represent and provide legal
services and advice to state hospitals or institutions with regard to all
provisions of and proceedings under this chapter except in proceedings
initiated by such hospitals and institutions seeking fourteen day detention.
Sec. 7. RCW 71.05.150 and 1997 c 112 s 8 are each amended to read as follows:
(1)(a)
When a county designated mental health professional ((designated by
the county)) who receives information alleging that a person, as a
result of a mental disorder: (i) Presents a likelihood of serious harm((,
or)); (ii) is gravely disabled; ((such mental health professional))
or (iii) has been referred under RCW 10.77.090; may, after investigation
and evaluation of the specific facts alleged((,)) and of the reliability
and credibility of ((the)) any person ((or persons, if any,))
providing information to initiate detention, ((may,)) if satisfied that
the allegations are true and that the person will not voluntarily seek
appropriate treatment, file a petition for initial detention. Before filing
the petition, the county designated mental health professional must personally
interview the person, unless the person refuses an interview, and determine
whether the person will voluntarily receive appropriate evaluation and
treatment at an evaluation and treatment facility.
(b) Whenever it appears, by petition for initial detention, to the satisfaction of a judge of the superior court that a person presents, as a result of a mental disorder, a likelihood of serious harm, or is gravely disabled, and that the person has refused or failed to accept appropriate evaluation and treatment voluntarily, the judge may issue an order requiring the person to appear within twenty-four hours after service of the order at a designated evaluation and treatment facility for not more than a seventy-two hour evaluation and treatment period. The order shall state the address of the evaluation and treatment facility to which the person is to report and whether the required seventy-two hour evaluation and treatment services may be delivered on an outpatient or inpatient basis and that if the person named in the order fails to appear at the evaluation and treatment facility at or before the date and time stated in the order, such person may be involuntarily taken into custody for evaluation and treatment. The order shall also designate retained counsel or, if counsel is appointed from a list provided by the court, the name, business address, and telephone number of the attorney appointed to represent the person.
(c) The mental health professional shall then serve or cause to be served on such person, his or her guardian, and conservator, if any, a copy of the order to appear together with a notice of rights and a petition for initial detention. After service on such person the mental health professional shall file the return of service in court and provide copies of all papers in the court file to the evaluation and treatment facility and the designated attorney. The mental health professional shall notify the court and the prosecuting attorney that a probable cause hearing will be held within seventy-two hours of the date and time of outpatient evaluation or admission to the evaluation and treatment facility. The person shall be permitted to remain in his or her home or other place of his or her choosing prior to the time of evaluation and shall be permitted to be accompanied by one or more of his or her relatives, friends, an attorney, a personal physician, or other professional or religious advisor to the place of evaluation. An attorney accompanying the person to the place of evaluation shall be permitted to be present during the admission evaluation. Any other individual accompanying the person may be present during the admission evaluation. The facility may exclude the individual if his or her presence would present a safety risk, delay the proceedings, or otherwise interfere with the evaluation.
(d) If the person ordered to appear does appear on or before the date and time specified, the evaluation and treatment facility may admit such person as required by RCW 71.05.170 or may provide treatment on an outpatient basis. If the person ordered to appear fails to appear on or before the date and time specified, the evaluation and treatment facility shall immediately notify the mental health professional designated by the county who may notify a peace officer to take such person or cause such person to be taken into custody and placed in an evaluation and treatment facility. Should the mental health professional notify a peace officer authorizing him or her to take a person into custody under the provisions of this subsection, he or she shall file with the court a copy of such authorization and a notice of detention. At the time such person is taken into custody there shall commence to be served on such person, his or her guardian, and conservator, if any, a copy of the original order together with a notice of detention, a notice of rights, and a petition for initial detention.
(2) When a mental health professional designated by the county receives information alleging that a person, as the result of a mental disorder, presents an imminent likelihood of serious harm, or is in imminent danger because of being gravely disabled, after investigation and evaluation of the specific facts alleged and of the reliability and credibility of the person or persons providing the information if any, the mental health professional may take such person, or cause by oral or written order such person to be taken into emergency custody in an evaluation and treatment facility for not more than seventy-two hours as described in RCW 71.05.180.
(3) A peace officer may take such person or cause such person to be taken into custody and placed in an evaluation and treatment facility pursuant to subsection (1)(d) of this section.
(4) A peace officer may, without prior notice of the proceedings provided for in subsection (1) of this section, take or cause such person to be taken into custody and immediately delivered to an evaluation and treatment facility or the emergency department of a local hospital:
(a) Only pursuant to subsections (1)(d) and (2) of this section; or
(b) When he or she has reasonable cause to believe that such person is suffering from a mental disorder and presents an imminent likelihood of serious harm or is in imminent danger because of being gravely disabled.
(5) Persons delivered to evaluation and treatment facilities by peace officers pursuant to subsection (4)(b) of this section may be held by the facility for a period of up to twelve hours: PROVIDED, That they are examined by a mental health professional within three hours of their arrival. Within twelve hours of their arrival, the designated county mental health professional must file a supplemental petition for detention, and commence service on the designated attorney for the detained person.
Sec. 8. RCW 71.05.200 and 1997 c 112 s 14 are each amended to read as follows:
(1) Whenever any person is detained for evaluation and treatment pursuant to this chapter, both the person and, if possible, a responsible member of his or her immediate family, guardian, or conservator, if any, shall be advised as soon as possible in writing or orally, by the officer or person taking him or her into custody or by personnel of the evaluation and treatment facility where the person is detained that unless the person is released or voluntarily admits himself or herself for treatment within seventy-two hours of the initial detention:
(a) That a judicial hearing in a superior court, either by a judge or court commissioner thereof, shall be held not more than seventy-two hours after the initial detention to determine whether there is probable cause to detain the person after the seventy-two hours have expired for up to an additional fourteen days without further automatic hearing for the reason that the person is a mentally ill person whose mental disorder presents a likelihood of serious harm or that the person is gravely disabled;
(b) That the person has a right to communicate immediately with an attorney; has a right to have an attorney appointed to represent him or her before and at the probable cause hearing if he or she is indigent; and has the right to be told the name and address of the attorney the mental health professional has designated pursuant to this chapter;
(c)(i)
That the person has the right to ((remain silent)) refrain from
testifying and that any statement he or she makes may be used against him
or her;
(ii) This subsection shall not prohibit the court from requiring a person who is alleged to be gravely disabled to answer inquiries from the judge or commissioner presiding over the proceeding, when such inquiries are related directly to determining whether the person is gravely disabled. No testimony provided by an individual, as a result of being ordered to do so by the court, may be used against the individual in any subsequent criminal proceeding;
(d) That the person has the right to present evidence and to cross-examine witnesses who testify against him or her at the probable cause hearing; and
(e) That the person has the right to refuse psychiatric medications, including antipsychotic medication beginning twenty-four hours prior to the probable cause hearing.
(2) When proceedings are initiated under RCW 71.05.150 (2), (3), or (4)(b), no later than twelve hours after such person is admitted to the evaluation and treatment facility the personnel of the evaluation and treatment facility or the designated mental health professional shall serve on such person a copy of the petition for initial detention and the name, business address, and phone number of the designated attorney and shall forthwith commence service of a copy of the petition for initial detention on the designated attorney.
(3) The judicial hearing described in subsection (1) of this section is hereby authorized, and shall be held according to the provisions of subsection (1) of this section and rules promulgated by the supreme court.
Sec. 9. RCW 71.05.210 and 1997 c 112 s 15 are each amended to read as follows:
Each
person involuntarily admitted to an evaluation and treatment facility shall,
within twenty-four hours of his or her admission, 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 as defined in this chapter,
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 ((court
proceeding)) 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 ((all
but emergency life-saving treatment)) psychiatric medications, and
the individual shall be informed at an appropriate time of his or her right ((to))
of such refusal ((of treatment)). ((Such)) 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 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 treatment. Notice of such fact shall be given to the court, the designated attorney, and the designated county 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. 10. RCW 71.05.250 and 1989 c 120 s 7 are each amended to read as follows:
At the probable cause hearing the detained person shall have the following rights in addition to the rights previously specified:
(1) To present evidence on his or her behalf;
(2) To cross-examine witnesses who testify against him or her;
(3) To be proceeded against by the rules of evidence;
(4)
To ((remain silent)) refrain from testifying: PROVIDED, That this
subsection shall not prohibit the court from requiring a person who is alleged
to be gravely disabled to answer inquiries from the judge or commissioner
presiding over the proceeding, when such inquiries are related directly to
determining whether the person is gravely disabled. No testimony provided by
an individual, as a result of being ordered to do so by the court, may be used
against the individual in any subsequent criminal proceeding;
(5) To view and copy all petitions and reports in the court file.
The physician-patient privilege or the psychologist-client privilege shall be deemed waived in proceedings under this chapter relating to the administration of antipsychotic medications. As to other proceedings under this chapter, the privileges shall be waived when a court of competent jurisdiction in its discretion determines that such waiver is necessary to protect either the detained person or the public.
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 sought by a petitioner to determine whether it is within the scope of the waiver.
The record maker 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 except that portions of the record which contains opinions as to the detained person's mental state must be deleted from such records unless the person making such conclusions is available for cross-examination.
NEW SECTION. Sec. 11. A new section is added to chapter 71.05 RCW to read as follows:
In making a determination of whether there is a likelihood of serious harm in a hearing conducted under RCW 71.05.240 or 71.05.320, the court shall give great weight to whether the person has: (1) A recent history of one or more violent acts, as defined in RCW 10.77.010; or (2) a recent history of one or more commitments under this chapter or its equivalent provisions under the laws of another state which were based on a likelihood of serious harm. However, the existence of prior violent acts or commitments under this chapter or its equivalent shall not be the sole basis for determining whether a person presents a likelihood of serious harm.
Sec. 12. RCW 71.05.280 and 1997 c 112 s 22 are each amended to read as follows:
At the expiration of the fourteen-day period of intensive treatment, a person may be confined for further treatment pursuant to RCW 71.05.320 if:
(1) Such person after having been taken into custody for evaluation and treatment has threatened, attempted, or inflicted: (a) Physical harm upon the person of another or himself or herself, or substantial damage upon the property of another, and (b) as a result of mental disorder presents a likelihood of serious harm; or
(2) Such person was taken into custody as a result of conduct in which he or she attempted or inflicted physical harm upon the person of another or himself or herself, or substantial damage upon the property of others, and continues to present, as a result of mental disorder, a likelihood of serious harm; or
(3)
Such person has been determined to be incompetent and criminal charges have
been dismissed pursuant to RCW 10.77.090(((3))) (4), and has
committed acts constituting a ((felony)) crime that is a threat to
public safety, and as a result of a mental disorder, presents a substantial
likelihood of repeating similar acts. In any proceeding pursuant to this
subsection it shall not be necessary to show intent, willfulness, or
state of mind as an element of the ((felony)) crime; or
(4) Such person is gravely disabled.
Sec. 13. RCW 71.05.330 and 1997 c 112 s 27 are each amended to read as follows:
(1) Nothing in this chapter shall prohibit the superintendent or professional person in charge of the hospital or facility in which the person is being involuntarily treated from releasing him or her prior to the expiration of the commitment period when, in the opinion of the superintendent or professional person in charge, the person being involuntarily treated no longer presents a likelihood of serious harm.
Whenever the superintendent or professional person in charge of a hospital or facility providing involuntary treatment pursuant to this chapter releases a person prior to the expiration of the period of commitment, the superintendent or professional person in charge shall in writing notify the court which committed the person for treatment.
(2)
Before a person committed under grounds set forth in RCW 71.05.280(3) or
71.05.320(2)(c) is released under this section, the superintendent or
professional person in charge shall in writing notify the prosecuting attorney
of the county in which the criminal charges against the committed person were
dismissed, of the release date. Notice shall be provided at least thirty days
before the release date. Within twenty days after receiving notice, the
prosecuting attorney may petition the court in the county in which the person
is being involuntarily treated for a hearing to determine whether the person is
to be released. 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 the
guardian or conservator of the committed person. The court shall conduct a
hearing on the petition within ten days of filing 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 released
without substantial danger to other persons, or substantial likelihood of
committing ((felonious)) criminal acts jeopardizing public safety
or security. If the court disapproves of the release, it may do so only on the
basis of substantial evidence. Pursuant to the determination of the court upon
the hearing, the committed person shall be released or shall be returned for
involuntary treatment 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.
Sec. 14. RCW 71.05.340 and 1997 c 112 s 28 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 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 release shall be given to the patient, the designated county 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 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 ((felonious)) 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 designated county mental health professional, or the secretary determines that:
(i)(A)
A conditionally released person is failing to adhere to the terms and
conditions of his or her release((, that)); or
(B)
Substantial deterioration in ((the)) a conditionally released
person's functioning has occurred((,)); and
(ii)
There is evidence of substantial decompensation with a ((high)) reasonable
probability that the decompensation can be reversed by further inpatient
treatment((, or there is a likelihood of serious harm,)); then,
upon notification by the hospital or facility designated to provide outpatient
care, or on his or her own motion, the designated county 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) If a conditionally released person presents a likelihood of serious harm, the designated county mental health professional or secretary shall order that the conditionally released person be apprehended and taken into custody. The person shall be detained 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 designated county mental health professional or the secretary may modify or rescind such order at any time prior to commencement of the court hearing.
(((b)))
(c) 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 designated county 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 release; (ii) that substantial deterioration in the person's
functioning has occurred; (iii) there is evidence of substantial decompensation
with a ((high)) 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)(((b)))
(c) have occurred, whether the conditions of release should be modified
or the person should be returned to the facility.
(((c)))
(d) 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 designated county 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. 15. RCW 71.05.370 and 1997 c 112 s 31 are each amended to read as follows:
Insofar as danger to the individual or others is not created, each person involuntarily detained, treated in a less restrictive alternative course of treatment, or committed for treatment and evaluation pursuant to this chapter shall have, in addition to other rights not specifically withheld by law, the following rights, a list of which shall be prominently posted in all facilities, institutions, and hospitals providing such services:
(1) To wear his or her own clothes and to keep and use his or her own personal possessions, except when deprivation of same is essential to protect the safety of the resident or other persons;
(2) To keep and be allowed to spend a reasonable sum of his or her own money for canteen expenses and small purchases;
(3) To have access to individual storage space for his or her private use;
(4) To have visitors at reasonable times;
(5) To have reasonable access to a telephone, both to make and receive confidential calls;
(6) To have ready access to letter writing materials, including stamps, and to send and receive uncensored correspondence through the mails;
(7) Not to consent to the administration of antipsychotic medications beyond the hearing conducted pursuant to RCW 71.05.320(2) or the performance of electroconvulsant therapy or surgery, except emergency life-saving surgery, unless ordered by a court of competent jurisdiction pursuant to the following standards and procedures:
(a) The administration of antipsychotic medication or electroconvulsant therapy shall not be ordered unless the petitioning party proves by clear, cogent, and convincing evidence that there exists a compelling state interest that justifies overriding the patient's lack of consent to the administration of antipsychotic medications or electroconvulsant therapy, that the proposed treatment is necessary and effective, and that medically acceptable alternative forms of treatment are not available, have not been successful, or are not likely to be effective.
(b) The court shall make specific findings of fact concerning: (i) The existence of one or more compelling state interests; (ii) the necessity and effectiveness of the treatment; and (iii) the person's desires regarding the proposed treatment. If the patient is unable to make a rational and informed decision about consenting to or refusing the proposed treatment, the court shall make a substituted judgment for the patient as if he or she were competent to make such a determination.
(c)
The person shall be present at any hearing on a request to administer
antipsychotic medication or electroconvulsant therapy filed pursuant to this
subsection. The person has the right: (i) To be represented by an attorney;
(ii) to present evidence; (iii) to cross-examine witnesses; (iv) to have the
rules of evidence enforced; (v) to ((remain silent)) refrain from
testifying; (vi) to view and copy all petitions and reports in the court
file; and (vii) to be given reasonable notice and an opportunity to prepare for
the hearing. The court may appoint a psychiatrist, psychologist within their
scope of practice, or physician to examine and testify on behalf of such
person. The court shall appoint a psychiatrist, psychologist within their
scope of practice, or physician designated by such person or the person's
counsel to testify on behalf of the person in cases where an order for
electroconvulsant therapy is sought.
(d) An order for the administration of antipsychotic medications entered following a hearing conducted pursuant to this section shall be effective for the period of the current involuntary treatment order, and any interim period during which the person is awaiting trial or hearing on a new petition for involuntary treatment or involuntary medication.
(e) Any person detained pursuant to RCW 71.05.320(2), who subsequently refuses antipsychotic medication, shall be entitled to the procedures set forth in RCW 71.05.370(7).
(f) Antipsychotic medication may be administered to a nonconsenting person detained or committed pursuant to this chapter without a court order pursuant to RCW 71.05.215(2) or under the following circumstances:
(i) A person presents an imminent likelihood of serious harm;
(ii) Medically acceptable alternatives to administration of antipsychotic medications are not available, have not been successful, or are not likely to be effective; and
(iii) In the opinion of the physician with responsibility for treatment of the person, or his or her designee, the person's condition constitutes an emergency requiring the treatment be instituted before a judicial hearing as authorized pursuant to this section can be held.
If antipsychotic medications are administered over a person's lack of consent pursuant to this subsection, a petition for an order authorizing the administration of antipsychotic medications shall be filed on the next judicial day. The hearing shall be held within two judicial days. If deemed necessary by the physician with responsibility for the treatment of the person, administration of antipsychotic medications may continue until the hearing is held;
(8) To dispose of property and sign contracts unless such person has been adjudicated an incompetent in a court proceeding directed to that particular issue;
(9) Not to have psychosurgery performed on him or her under any circumstances.
Sec. 16. RCW 71.05.390 and 1993 c 448 s 6 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((, not)): (a) Employed by
the facility((, who does not have the)); (b) who has medical
responsibility for the patient's care ((or who is not)); (c) who is
a designated county mental health professional ((or who is not involved in));
(d) who is providing services under ((the community mental health
services act,)) chapter 71.24 RCW; or (e) who is employed by a local
correctional facility where the person is confined.
(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 of social and health services 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, the fact and date of discharge, 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 admission, discharge, 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. 17. RCW 71.05.530 and 1973 1st ex.s. c 142 s 58 are each amended to read as follows:
Evaluation
and treatment facilities authorized pursuant to this chapter may be part of the
comprehensive community mental health services program conducted in counties
pursuant to ((the Community Mental Health Services Act,)) chapter 71.24
RCW, and may receive funding pursuant to the provisions thereof.
Sec. 18. RCW 71.05.560 and 1973 1st ex.s. c 142 s 61 are each amended to read as follows:
The
department ((of social and health services)) shall adopt such rules ((and
regulations)) as may be necessary to effectuate the intent and purposes of
this chapter, which shall include but not be limited to evaluation of the
quality of the program and facilities operating pursuant to this chapter,
evaluation of the effectiveness and cost effectiveness of such programs and
facilities, and procedures and standards for certification and other action
relevant to evaluation and treatment facilities.
NEW SECTION. Sec. 19. A new section is added to chapter 71.05 RCW to read as follows:
In any judicial proceeding in which a professional person has made a recommendation regarding whether an individual should be committed for treatment under this chapter, and the court does not follow the recommendation, the court shall enter findings that state with particularity its reasoning. These findings shall include a finding whether or not the person presents a likelihood of serious harm.
NEW SECTION. Sec. 20. A new section is added to chapter 71.05 RCW to read as follows:
The department shall develop state-wide protocols to be utilized by professional persons and county designated mental health professionals in administration of this chapter. The protocols shall be updated at least every three years. The protocols shall provide uniform development and application of criteria in evaluation and commitment recommendations, of persons who have, or are alleged to have, mental disorders and are subject to this chapter.
The initial protocols shall be developed not later than December 1, 1998. The department shall develop the protocols in consultation with representatives of county designated mental health professionals, local government, law enforcement, county and city prosecutors, public defenders, and groups concerned with mental illness. The protocols shall be submitted to the governor and legislature upon adoption by the department.
Sec. 21. RCW 10.77.005 and 1989 c 420 s 1 are each amended to read as follows:
((With
respect to this act,)) The legislature finds that among those
persons who endanger the safety of others by committing ((felony))
crimes are a small number of persons with developmental disabilities. While
their conduct is not typical of the vast majority of persons with developmental
disabilities who are responsible citizens, for their own welfare and for the
safety of others the state may need to exercise control over those few
dangerous individuals who are developmentally disabled, have been charged with
((felony)) crimes, and have been found either incompetent to stand trial
or not guilty by reason of insanity. The legislature finds, however, that the
use of civil commitment procedures under chapter 71.05 RCW to effect state
control over dangerous developmentally disabled persons has resulted in their
commitment to institutions for the mentally ill. The legislature finds that
existing programs in mental institutions may be inappropriate for persons who
are developmentally disabled because the services provided in mental
institutions are oriented to persons with mental illness, a condition not
necessarily associated with developmental disabilities. Therefore, the
legislature believes that, where appropriate, and subject to available funds,
persons with developmental disabilities who have been charged with ((felony))
crimes and have been found incompetent to stand trial or not guilty by reason
of insanity should receive state services addressing their needs, that such
services must be provided in conformance with an individual habilitation plan,
and that their initial treatment should be separate and discrete from treatment
for persons involved in any other treatment or habilitation program in a manner
consistent with the needs of public safety.
Sec. 22. RCW 10.77.010 and 1993 c 31 s 4 are each amended to read as follows:
As used in this chapter:
(1)
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 ((felonious)) criminal acts jeopardizing public safety
or security unless kept under further control by the court or other persons or
institutions.
(2) "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.
(3) "Secretary" means the secretary of the department of social and health services or his or her designee.
(4) "Department" means the state department of social and health services.
(5) "Treatment" means any currently standardized medical or mental health procedure including medication.
(6) "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.
(7)
((No condition of mind proximately induced by the voluntary act of a person
charged with a crime shall constitute "insanity".
(8)))
"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.
(((9)))
(8) "Developmental disability" means the condition defined in
RCW 71A.10.020(2).
(((10)))
(9) "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.
(((11)))
(10) "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.
(((12)
"Psychiatrist" means a person having a license)) (11)
"Expert or 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((.
(13)
"Psychologist" means a person who has been));
(b)
A psychologist licensed as a psychologist pursuant to chapter 18.83 RCW((.
(14)
"Social worker" means a person));
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.
(((15)))
(12) "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, 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.
(13) "Violent act" means behavior that resulted in homicide, suicide, nonfatal injuries, or substantial damage to property.
(14) "County designated mental health professional" has the same meaning as provided in RCW 71.05.020.
Sec. 23. RCW 10.77.020 and 1993 c 31 s 5 are each amended to read as follows:
(1) At any and all stages of the proceedings pursuant to this chapter, any 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 him or her. A person may waive his or her right to counsel; but such waiver shall only be effective if a court makes a specific finding that he or she is or was competent to so waive. In making such findings, the court shall be guided but not limited by the following standards: Whether the person attempting to waive the assistance of counsel, does so understanding:
(a) The nature of the charges;
(b) The statutory offense included within them;
(c) The range of allowable punishments thereunder;
(d) Possible defenses to the charges and circumstances in mitigation thereof; and
(e) All other facts essential to a broad understanding of the whole matter.
(2)
Whenever any person is subjected to an examination pursuant to any provision of
this chapter, he or she may retain an expert or professional person to perform
an examination in his or her behalf. In the case of a person who is indigent,
the court shall upon his or her request assist the person in obtaining an
expert or professional person to perform an examination or participate in the
hearing on his or her behalf. An expert or professional person obtained by an
indigent person pursuant to the provisions of this chapter shall be compensated
for his or her services out of funds of the department, in an amount determined
by ((it)) the secretary to be fair and reasonable.
(3)
((Whenever any person has been committed under any provision of this
chapter, or ordered to undergo alternative treatment following his or her
acquittal of a crime charged by reason of insanity, such commitment or
treatment cannot exceed the maximum possible penal sentence for any offense
charged for which the person was acquitted by reason of insanity. If at the
end of that period the person has not been finally discharged and is still in
need of commitment or treatment, civil commitment proceedings may be
instituted, if appropriate.
(4))) Any
time the defendant is being examined by court appointed experts or professional
persons pursuant to the provisions of this chapter, the defendant shall be
entitled to have his or her attorney present. The defendant may refuse to
answer any question if he or she believes his or her answers may tend to
incriminate him or her or form links leading to evidence of an incriminating
nature.
NEW SECTION. Sec. 24. A new section is added to chapter 10.77 RCW to read as follows:
(1) Whenever any person has been committed under any provision of this chapter, or 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 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, the professional person shall, prior to the person's release from the facility, notify the appropriate county designated mental health professional of the impending release 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.
(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, determine whether to initiate proceedings under chapter 71.05 RCW.
Sec. 25. RCW 10.77.030 and 1974 ex.s. c 198 s 3 are each amended to read as follows:
(1) Evidence of insanity is not admissible unless the defendant, at the time of arraignment or within ten days thereafter or at such later time as the court may for good cause permit, files a written notice of his or her intent to rely on such a defense.
(2) Insanity is a defense which the defendant must establish by a preponderance of the evidence.
(3) No condition of mind proximately induced by the voluntary act of a person charged with a crime shall constitute "insanity."
Sec. 26. RCW 10.77.040 and 1974 ex.s. c 198 s 4 are each amended to read as follows:
Whenever the issue of insanity is submitted to the jury, the court shall instruct the jury to return a special verdict in substantially the following form:
answer
yes or no
1. Did the defendant commit the act charged? . . . . .
2. If your answer to number 1 is yes, do you acquit him or her because of insanity existing at the time of the act charged? . . . . .
3. If your answer to number 2 is yes, is the defendant a substantial danger to other persons unless kept under further control by the court or other persons or institutions? . . . . .
4. If your answer to number 2 is yes, does the
defendant present a substantial likelihood of committing ((felonious)) criminal
acts jeopardizing public safety or security unless kept under further control
by the court or other persons or institutions? . . . . .
5. If your answers to either number 3 or number 4 is yes, is it in the best interests of the defendant and others that the defendant be placed in treatment that is less restrictive than detention in a state mental hospital? . . . . .
Sec. 27. RCW 10.77.060 and 1989 c 420 s 4 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 qualified experts or professional persons, one of whom shall be approved by the prosecuting attorney, to examine and report upon the mental 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. For purposes of the examination, the court may order the defendant committed to a hospital or other suitable public or private facility for a period of time necessary to complete the examination, but not to exceed fifteen days.
(b) When a defendant is ordered to be committed under this subsection, the court may delay granting bail until the defendant has been evaluated for competency 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 experts or professional persons. 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, 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 is a substantial danger to other
persons, or presents a substantial likelihood of committing ((felonious))
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.
NEW SECTION. Sec. 28. A new section is added to chapter 10.77 RCW to read as follows:
(1) Whenever a defendant is committed for evaluation under this chapter, a copy of the order shall be transmitted to the county designated mental health professional of the county in which the defendant was charged.
(2)(a) When a defendant is committed under RCW 10.77.060, the professional person in charge of the facility shall make a recommendation to the court whether the defendant should be evaluated by a county designated mental health professional for purposes of filing a petition under chapter 71.05 RCW whenever the defendant: (i) Is charged with, or has a history of one or more violent acts; (ii) is a threat to public safety; (iii) has previously been acquitted by reason of insanity; or (iv) has previously been found incompetent pursuant to this chapter.
(b) The facility conducting the evaluation shall promptly provide its 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 county designated mental health professional, the prosecuting attorney, and the defense attorney. Upon request, the facility shall also provide copies of any source documents relevant to the evaluation to the county designated mental health professional.
(3) The report and recommendation shall be provided to the court, prosecuting attorney, and defense attorney 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.
(4) If the facility recommends an evaluation under chapter 71.05 RCW, the court shall order an evaluation be conducted prior to release from confinement for a defendant who is: (a) Found to be not competent; (b) acquitted; or (c) convicted if sentenced to confinement for twelve months or less.
(5) The county 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.
(6) The prosecuting attorney shall provide a copy of the results of any proceedings commenced by the county designated mental health professional under subsection (5) of this section to the facility conducting the evaluation under this chapter.
Sec. 29. RCW 10.77.070 and 1973 1st ex.s. c 117 s 7 are each amended to read as follows:
When the defendant wishes to be examined by a qualified expert or professional person of his or her own choice such examiner shall be permitted to have reasonable access to the defendant for the purpose of such examination, as well as to all relevant medical and psychological records and reports.
Sec. 30. RCW 10.77.080 and 1974 ex.s. c 198 s 7 are each amended to read as follows:
The
defendant may move the court for a judgment of acquittal on the grounds of
insanity: PROVIDED, That a defendant so acquitted may not later contest the
validity of his or her detention on the grounds that he or she
did not commit the acts charged. At the hearing upon ((said)) the
motion the defendant shall have the burden of proving by a preponderance of the
evidence that he or she was insane at the time of the offense or
offenses with which he or she is charged. If the court finds that the
defendant should be acquitted by reason of insanity, it shall enter specific
findings in substantially the same form as set forth in RCW 10.77.040 ((as
now or hereafter amended)). If the motion is denied, the question may be
submitted to the trier of fact in the same manner as other issues of fact.
Sec. 31. RCW 10.77.090 and 1989 c 420 s 5 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((, as now or
hereafter amended, that the)) a defendant is incompetent, the court
shall order the proceedings against the defendant be stayed, except as provided
in ((subsection (5) of)) this section((, and,)) or section 32
of this act.
(b)
If the defendant is charged with a felony, ((may)) the court
shall commit the defendant to the custody of the secretary, who shall place
such defendant in an appropriate facility ((of the department)) for
evaluation and treatment((, or the court may alternatively order the
defendant to undergo evaluation and treatment at some other facility,)) or
under the guidance and control of ((some other)) a professional
person, until he or she has regained the competency necessary to understand the
proceedings against him or her and assist in his or her own defense, but in any
event, for no longer than a period of ninety days. ((A defendant found
incompetent shall be evaluated at the direction of the secretary and a
determination made whether the defendant is developmentally disabled. 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. When appropriate, and subject to available funds, if the defendant is
determined to be developmentally disabled, 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. The program shall be separate from
programs serving persons involved in any other treatment or habilitation
program. The program shall be appropriately secure under the circumstances and
shall be administered by developmental disabilities professionals who shall
direct the habilitation efforts. The program shall provide an environment
affording security appropriate with the charged criminal behavior and necessary
to protect the public safety. 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. The department may establish admission
priorities in the event that the number of eligible persons exceeds the limits
set by the department. A copy of the report shall be sent to the facility.))
(c) If the defendant is charged with a misdemeanor and has: (i) A history of, or pending charges, which involve one or more violent acts; (ii) been previously acquitted by reason of insanity; or (iii) been previously found incompetent under this chapter with regard to an offense involving harm or attempted harm to a person, the proceedings against the defendant shall be stayed, and the defendant transferred to the superior court in the county in which the criminal charge was filed. The superior court shall commit the defendant to the custody of the secretary for a period not to exceed fourteen days for treatment of a mental condition as a gravely disabled person, under chapter 71.05 RCW, and for assistance in regaining his or her competency necessary to understand the proceedings against him or her and assist in his or her own defense. If the person does not regain his or her competency at the end of the period, the criminal proceeding shall be dismissed and a petition for up to a ninety-day commitment for involuntary treatment or a one hundred eighty-day less restrictive commitment under chapter 71.05 RCW shall be initiated. In no event may the amount of time a person is committed as a result of proceedings initiated under this section exceed the maximum possible penal sentence for any offense charged for which the person was found incompetent. If the person regains his or her competency, the court shall order the defendant returned to the court in which the criminal charge was filed.
(d) If the defendant is charged with a crime that is not a felony or a misdemeanor meeting the criteria under (c) of this subsection, the court may stay or dismiss proceedings and detain the defendant for sufficient time to allow the county designated mental health professional to evaluate the defendant and commence 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 (1)(d), and provide an opportunity for a hearing on whether to dismiss the proceedings.
(2)
On or before expiration of the initial ninety-day period of commitment under
subsection (1) of this section the court shall conduct a hearing, at which
it shall determine whether or not the defendant is incompetent. ((If the
defendant is charged with a crime which is not a felony, the court may stay or
dismiss proceedings and detain the defendant for sufficient time to allow the
county mental health professional to evaluate the defendant and commence
proceedings under chapter 71.05 RCW if appropriate; and subsections (2) and (3)
of this section shall not be applicable: PROVIDED, That, upon order of the
court, the prosecutor may directly petition for fourteen days of involuntary
treatment under chapter 71.05 RCW.
(2))) (3) If
the court finds by a preponderance of the evidence that ((the)) a
defendant charged with a felony is incompetent, the court shall have the
option of extending the order of commitment or alternative treatment for an
additional ninety-day period, but it must at the time of extension set a
date for a prompt hearing to determine the defendant's competency before the
expiration of the second ninety-day period. The defendant, the
defendant's attorney, or the prosecutor((, or the judge shall have
the right to)) may demand that the hearing ((on or before the
expiration of the second ninety day period)) be before a jury. No
extension shall be ordered for a second ninety-day period, nor for any
subsequent period as provided in subsection (((3))) (4) of this
section if the defendant's incompetence has been determined under section 32
of this act by the secretary to be solely the result of a developmental
disability which is such that competence is not reasonably likely to be
regained during an extension. ((If no demand is made, the hearing shall be
before the court. The court or jury shall determine whether or not the
defendant has become competent.
(3))) (4)
At the hearing upon the expiration of the second ninety-day period or at
the end of the first ninety-day period, in the case of a developmentally
disabled defendant, if the jury or court((, as the case may be,)) finds
that the defendant is incompetent, the charges shall be dismissed without
prejudice, and either civil commitment proceedings shall be instituted((, if
appropriate,)) or the court shall order the release of the defendant:
PROVIDED, That the criminal charges shall not be dismissed if ((at the end
of the second ninety-day period, or at the end of the first ninety-day period,
in the case of a developmentally disabled defendant,)) the court or jury
finds that: (a) The defendant (i) is a substantial danger to
other persons((,)); or (ii) presents a substantial
likelihood of committing ((felonious)) criminal acts jeopardizing
public safety or security((,)); and ((that)) (b)
there is a substantial probability that the defendant will regain competency
within a reasonable period of time. In the event that the court or jury makes
such a finding, the court may extend the period of commitment for an additional
six months. At the end of ((said)) the six-month period,
if the defendant remains incompetent, the charges shall be dismissed without
prejudice and either civil commitment proceedings shall be instituted((, if
appropriate,)) or the court shall order release of the defendant.
(((4)))
(5) If the defendant is referred to the county designated mental health
professional for consideration of commitment proceedings under chapter 71.05
RCW pursuant to this chapter, the county designated mental health professional
shall provide prompt written notification of the results of the determination
whether to commence proceedings under chapter 71.05 RCW, and the results of any
commitment proceedings. The notification shall be provided to the court in
which the criminal action was pending, the prosecutor, and the defense attorney
in the criminal action.
(6) 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.
(((5)))
(7) 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.
(((6)))
(8) 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).
NEW SECTION. Sec. 32. A new section is added to chapter 10.77 RCW to read as follows:
A defendant who is found incompetent shall be referred to the secretary to determine whether he or she is developmentally disabled. The determination shall be accomplished as soon as possible following the court's referral of the defendant to the secretary. When appropriate, and subject to available funds, a defendant determined to be developmentally disabled may be placed in a program reserved for the treatment and training of persons with developmental disabilities. The defendant shall have the right to habilitation according to an individualized service plan specifically developed for his or her particular needs. The program shall be separate from programs serving persons involved in any other treatment or habilitation program.
A program in which a developmentally disabled person is placed under this section shall be administered by developmental disabilities professionals and security appropriate with the charged criminal behavior and necessary to protect the public safety. The department may limit and prioritize admissions to the program in order to ensure that admissions and expenditures for services do not exceed amounts appropriated and allocated by the department.
Sec. 33. RCW 10.77.110 and 1989 c 420 s 6 are each amended to read as follows:
(1)
If a defendant is acquitted of a ((felony)) 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 ((felonious))
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. If it is found that such defendant is
a substantial danger to other persons, or presents a substantial likelihood of
committing ((felonious)) 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 ((felonious))
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 ((felonious))
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. ((If the defendant is acquitted
by reason of insanity of a crime which is not a felony, the court shall order
the defendant's release or order the defendant's continued custody only for a
reasonable time to allow the county-designated mental-health professional to
evaluate the individual and to proceed with civil commitment pursuant to
chapter 71.05 RCW, if considered appropriate.))
Sec. 34. RCW 10.77.140 and 1989 c 420 s 8 are each amended to read as follows:
Each
person committed to a hospital or other facility or conditionally released
pursuant to this chapter shall have a current examination of his or her mental
condition made by one or more experts or professional persons at least once
every six months. ((Said)) The person may retain, or if the
person is indigent and so requests, the court may appoint a qualified expert or
professional person to examine him or her, and such expert or professional
person shall have access to all hospital records concerning the person. In the
case of a committed or conditionally released person who is developmentally
disabled, the expert shall be a developmental disabilities professional. The
secretary, upon receipt of the periodic report, shall provide written notice to
the court of commitment of compliance with the requirements of this section.
Sec. 35. RCW 10.77.150 and 1993 c 31 s 6 are each amended to read as follows:
(1)
Persons examined pursuant to RCW 10.77.140((, as now or hereafter amended,))
may make application to the secretary for conditional release. The secretary
shall, after considering the reports of experts or professional persons
conducting the examination pursuant to RCW 10.77.140, forward to the court of
the county which ordered the person's commitment the person's application for
conditional release as well as the secretary's recommendations concerning the
application and any proposed terms and conditions upon which the secretary
reasonably believes the person can be conditionally released. Conditional
release may also contemplate partial release for work, training, or educational
purposes.
(2)
The court of the county which ordered the person's commitment, upon receipt of
an application for conditional release with the secretary's recommendation for
conditional release, shall within thirty days schedule a hearing. The court
may schedule a hearing on applications recommended for disapproval by the
secretary. The prosecuting attorney shall represent the state at such hearings
and shall have the right to have the patient examined by an expert or
professional person of the prosecuting attorney's choice. If the committed
person is indigent, and he or she so requests, the court shall appoint a qualified
expert or professional person to examine the person on his or her behalf. The
issue to be determined at such a hearing is whether or not the person may be
released conditionally without substantial danger to other persons, or
substantial likelihood of committing ((felonious)) criminal acts
jeopardizing public safety or security. The court, after the hearing, shall
rule on the secretary's recommendations, and if it disapproves of conditional
release, may do so only on the basis of substantial evidence. The court may
modify the suggested terms and conditions on which the person is to be
conditionally released. Pursuant to the determination of the court after
hearing, the committed person shall thereupon be released on such conditions as
the court determines to be necessary, or shall be remitted to the custody of
the secretary. If the order of conditional release includes a requirement for
the committed person to report to a community corrections officer, the order
shall also specify that the conditionally released person shall be under the
supervision of the secretary of corrections or such person as the secretary of
corrections may designate and shall follow explicitly the instructions of the
secretary of corrections including reporting as directed to a community
corrections officer, remaining within prescribed geographical boundaries, and
notifying the community corrections officer prior to making any change in the
offender's address or employment.
(3) If the court determines that receiving regular or periodic medication or other medical treatment shall be a condition of the committed person's release, then the court shall require him or her to report to a physician or other medical or mental health practitioner for the medication or treatment. In addition to submitting any report required by RCW 10.77.160, the physician or other medical or mental health practitioner shall immediately upon the released person's failure to appear for the medication or treatment report the failure to the court, to the prosecuting attorney of the county in which the released person was committed, and to the supervising community corrections officer.
(4) Any person, whose application for conditional release has been denied, may reapply after a period of six months from the date of denial.
Sec. 36. RCW 10.77.180 and 1993 c 31 s 9 are each amended to read as follows:
Each
person conditionally released pursuant to RCW 10.77.150((, as now or
hereafter amended,)) shall have his or her case reviewed by the court which
conditionally released him or her no later than one year after such release and
no later than every two years thereafter, such time to be scheduled by the
court. Review may occur in a shorter time or more frequently, if the court, in
its discretion, on its own motion, or on motion of the person, the secretary of
social and health services, the secretary of corrections, medical or mental
health practitioner, or the prosecuting attorney, so determines. The sole
question to be determined by the court is whether the person shall continue to
be conditionally released. The court in making its determination shall be
aided by the periodic reports filed pursuant to RCW 10.77.140((, as now or
hereafter amended,)) and ((RCW)) 10.77.160, and the opinions of the
secretary of social and health services and other experts or professional
persons.
Sec. 37. RCW 10.77.190 and 1993 c 31 s 10 are each amended to read as follows:
(1) Any person submitting reports pursuant to RCW 10.77.160, the secretary, 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 modifying the terms of conditional release if the petitioner or the court 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 social and health services, the secretary of corrections, or the court, after examining the report filed with them pursuant to RCW 10.77.160, 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 of social and health services or the secretary of corrections may order that the conditionally released person be apprehended and taken into custody until such time as a hearing can be scheduled to determine the facts and whether or not 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. Both the prosecuting attorney and the conditionally released person shall have the right to request an immediate mental examination of the conditionally released person. If the conditionally released person is indigent, the court or secretary of social and health services or the secretary of corrections shall, upon request, assist him or her in obtaining a qualified expert or professional person to conduct the examination.
(3) If the hospital or facility designated to provide outpatient care determines that a conditionally released person presents a threat to public safety, the hospital or facility shall immediately notify the county designated mental health professional or the secretary, who shall order that the conditionally released person be apprehended and taken into custody.
(4) 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, or whether the person presents a threat to public safety. 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 his or her conditional release shall be revoked and he or she shall be committed subject to release only in accordance with provisions of this chapter.
Sec. 38. RCW 10.77.200 and 1993 c 31 s 11 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. 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 he or she then shall
authorize ((said)) 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, 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
((felonious)) 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 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 ((felonious)) 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. 39. RCW 10.77.210 and 1993 c 31 s 12 are each amended to read as follows:
(1) Any person involuntarily detained, hospitalized, or committed pursuant to the provisions of this chapter shall have the right to adequate care and individualized treatment. The person who has custody of the patient or is in charge of treatment shall keep records detailing all medical, expert, and professional care and treatment received by a committed person, and shall keep copies of all reports of periodic examinations of the patient that have been filed with the secretary pursuant to this chapter. Except as provided in RCW 10.77.205 and 4.24.550 regarding the release of information concerning insane offenders who are acquitted of sex offenses and subsequently committed pursuant to this chapter, all records and reports made pursuant to this chapter, shall be made available only upon request, to the committed person, to his or her attorney, to his or her personal physician, to the supervising community corrections officer, to the prosecuting attorney, to the court, to the protection and advocacy agency, or other expert or professional persons who, upon proper showing, demonstrates a need for access to such records. All records and reports made pursuant to this chapter shall also be made available, upon request, to the department of corrections or the indeterminate sentence review board if the person was on parole, probation, or community supervision at the time of detention, hospitalization, or commitment or the person is subsequently convicted for the crime for which he or she was detained, hospitalized, or committed pursuant to this chapter.
(2) All relevant records and reports as defined by the department in rule shall be made available, upon request, to criminal justice agencies as defined in RCW 10.97.030.
NEW SECTION. Sec. 40. In developing rules under RCW 10.77.210(2), the department shall implement the following legislative intent: Increasing public safety; and making decisions based on a person's current conduct and mental condition rather than the classification of the charges.
Sec. 41. RCW 10.77.240 and 1973 1st ex.s. c 117 s 24 are each amended to read as follows:
Nothing in this chapter shall prohibit a person presently committed from exercising a right presently available to him or her for obtaining release from confinement, including the right to petition for a writ of habeas corpus.
NEW SECTION. Sec. 42. A new section is added to chapter 10.77 RCW to read as follows:
A copy of relevant records and reports as defined by the department, in consultation with the department of corrections, made pursuant to this chapter shall accompany the defendant upon transfer to a mental health facility or a correctional institution or facility.
NEW SECTION. Sec. 43. A new section is added to chapter 10.77 RCW to read as follows:
The secretary shall, for any person committed to a state correctional facility after the effective date of this section, inquire at the time of commitment whether the person had received outpatient mental health treatment within the three years preceding confinement, and the name of the person providing the treatment.
The secretary shall inquire of the treatment provider if he or she wishes to be notified of the release of the person from confinement, for purposes of offering treatment upon the inmate's release. If the treatment provider wishes to be notified of the inmate's release, the secretary shall attempt to provide such notice at least seven days prior to release.
If, at the time of release, the secretary is unable to locate the treatment provider, the secretary shall notify the regional support network in the county most likely to be the county in which the inmate will initially reside following release.
A copy of relevant records and reports, as determined by the department of corrections, relating to the offender's mental health treatment or status shall be promptly made available to the offender's present or future treatment provider.
Sec. 44. RCW 10.97.030 and 1990 c 3 s 128 are each amended to read as follows:
For purposes of this chapter, the definitions of terms in this section shall apply.
(1) "Criminal history record information" means information contained in records collected by criminal justice agencies, other than courts, on individuals, consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, including acquittals by reason of insanity, dismissals based on lack of competency, sentences, correctional supervision, and release.
The term includes information contained in records maintained by or obtained from criminal justice agencies, other than courts, which records provide individual identification of a person together with any portion of the individual's record of involvement in the criminal justice system as an alleged or convicted offender, except:
(a) Posters, announcements, or lists for identifying or apprehending fugitives or wanted persons;
(b) Original records of entry maintained by criminal justice agencies to the extent that such records are compiled and maintained chronologically and are accessible only on a chronological basis;
(c) Court indices and records of public judicial proceedings, court decisions, and opinions, and information disclosed during public judicial proceedings;
(d) Records of traffic violations which are not punishable by a maximum term of imprisonment of more than ninety days;
(e)
Records of any traffic offenses as maintained by the department of licensing
for the purpose of regulating the issuance, suspension, revocation, or renewal
of drivers' or other operators' licenses and pursuant to RCW 46.52.130 ((as
now existing or hereafter amended));
(f)
Records of any aviation violations or offenses as maintained by the department
of transportation for the purpose of regulating pilots or other aviation
operators, and pursuant to RCW 47.68.330 ((as now existing or hereafter
amended));
(g) Announcements of executive clemency.
(2) "Nonconviction data" consists of all criminal history record information relating to an incident which has not led to a conviction or other disposition adverse to the subject, and for which proceedings are no longer actively pending. There shall be a rebuttable presumption that proceedings are no longer actively pending if more than one year has elapsed since arrest, citation, or service of warrant and no disposition has been entered.
(3) "Conviction record" means criminal history record information relating to an incident which has led to a conviction or other disposition adverse to the subject.
(4)
"Conviction or other disposition adverse to the subject" means any
disposition of charges ((, except)) other than: (a) A decision
not to prosecute((,)); (b) a dismissal((,)); or (c)
acquittal ((except when the)); with the following exceptions, which
shall be considered dispositions adverse to the subject: An acquittal ((is))
due to a finding of not guilty by reason of insanity and a dismissal by
reason of incompetency, pursuant to chapter 10.77 RCW ((and)) when
the person was committed pursuant to chapter 10.77 RCW((: PROVIDED,
HOWEVER, That)); and a dismissal entered after a period of
probation, suspension, or deferral of sentence ((shall be considered a
disposition adverse to the subject)).
(5) "Criminal justice agency" means: (a) A court; or (b) a government agency which performs the administration of criminal justice pursuant to a statute or executive order and which allocates a substantial part of its annual budget to the administration of criminal justice.
(6) "The administration of criminal justice" means performance of any of the following activities: Detection, apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders. The term also includes criminal identification activities and the collection, storage, dissemination of criminal history record information, and the compensation of victims of crime.
(7) "Disposition" means the formal conclusion of a criminal proceeding at whatever stage it occurs in the criminal justice system.
(8) "Dissemination" means disclosing criminal history record information or disclosing the absence of criminal history record information to any person or agency outside the agency possessing the information, subject to the following exceptions:
(a) When criminal justice agencies jointly participate in the maintenance of a single record keeping department as an alternative to maintaining separate records, the furnishing of information by that department to personnel of any participating agency is not a dissemination;
(b) The furnishing of information by any criminal justice agency to another for the purpose of processing a matter through the criminal justice system, such as a police department providing information to a prosecutor for use in preparing a charge, is not a dissemination;
(c) The reporting of an event to a record keeping agency for the purpose of maintaining the record is not a dissemination.
NEW SECTION. Sec. 45. The code reviser shall alphabetize the definitions in RCW 10.77.010 and correct any references.
NEW SECTION. Sec. 46. The following acts or parts of acts are each repealed:
(1) RCW 71.05.015 and 1979 ex.s. c 215 s 1;
(2) RCW 71.05.080 and 1973 1st ex.s. c 142 s 13; and
(3) RCW 71.05.490 and 1997 c 112 s 35 & 1973 1st ex.s. c 142 s 54.
NEW SECTION. Sec. 47. This act takes effect July 1, 1998, except section 46 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect March 31, 1998.
NEW SECTION. Sec. 48. The sum of . . . . . . dollars, or as much thereof as may be necessary, is appropriated for the biennium ending June 30, 1999, from the general fund to the department of social and health services for the purposes of implementing this act.
NEW SECTION. Sec. 49. RCW 10.77.005 is recodified within chapter 10.77 RCW after RCW 10.77.090.
NEW SECTION. Sec. 50. 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.
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