ESB 6610 -
By Representative Green
ADOPTED 03/10/2010
Strike everything after the enacting clause and insert the following:
"NEW SECTION. Sec. 1 A new section is added to chapter 10.77 RCW
to read as follows:
(1) The secretary shall establish an independent public safety
review panel for the purpose of advising the secretary and the courts
with respect to persons who have been found not guilty by reason of
insanity. The panel shall provide advice regarding all
recommendations: (a) For a change in commitment status; (b) to allow
furloughs or temporary leaves accompanied by staff; or (c) to permit
movement about the grounds of the treatment facility, with or without
the accompaniment of staff.
(2) The members of the public safety review panel shall be
appointed by the governor for a renewable term of three years and shall
include the following:
(a) A psychiatrist;
(b) A licensed clinical psychologist;
(c) A representative of the department of corrections;
(d) A prosecutor or a representative of a prosecutor's association;
(e) A representative of law enforcement or a law enforcement
association;
(f) A consumer and family advocate representative; and
(g) A public defender or a representative of a defender's
association.
(3) Thirty days prior to issuing a recommendation for conditional
release under RCW 10.77.150 or forty-five days prior to issuing a
recommendation for release under RCW 10.77.200, the secretary shall
submit its recommendation with the committed person's application and
the department's risk assessment to the public safety review panel.
The public safety review panel shall complete an independent assessment
of the public safety risk entailed by the secretary's proposed
conditional release recommendation or release recommendation and
provide this assessment in writing to the secretary. The public safety
review panel may, within funds appropriated for this purpose, request
additional evaluations of the committed person. The public safety
review panel may indicate whether it is in agreement with the
secretary's recommendation, or whether it would issue a different
recommendation. The secretary shall provide the panel's assessment
when it is received along with any supporting documentation, including
all previous reports of evaluations of the committed person in the
person's hospital record, to the court, prosecutor in the county that
ordered the person's commitment, and counsel for the committed person.
(4) The secretary shall notify the public safety review panel at
appropriate intervals concerning any changes in the commitment or
custody status of persons found not guilty by reason of insanity. The
panel shall have access, upon request, to a committed person's complete
hospital record.
(5) The department shall provide administrative and financial
support to the public safety review panel. The department, in
consultation with the public safety review panel, may adopt rules to
implement this section.
(6) By December 1, 2014, the public safety review panel shall
report to the appropriate legislative committees the following:
(a) Whether the public safety review panel has observed a change in
statewide consistency of evaluations and decisions concerning changes
in the commitment status of persons found not guilty by reason of
insanity;
(b) Whether the public safety review panel should be given the
authority to make release decisions and monitor release conditions;
(c) Any other issues the public safety review panel deems relevant.
NEW SECTION. Sec. 2 A new section is added to chapter 10.77 RCW
to read as follows:
(1) If the secretary determines in writing that a person committed
to the custody of the secretary for treatment as criminally insane
presents an unreasonable safety risk which, based on behavior, clinical
history, and facility security is not manageable in a state hospital
setting, the secretary may place the person in any secure facility
operated by the secretary or the secretary of the department of
corrections. Any person affected by this provision shall receive
appropriate mental health treatment governed by a formalized treatment
plan targeted at mental health rehabilitation needs and shall be
afforded his or her rights under RCW 10.77.140, 10.77.150, and
10.77.200. The secretary of the department of social and health
services shall retain legal custody of any person placed under this
section and review any placement outside of a department mental health
hospital every three months, or sooner if warranted by the person's
mental health status, to determine if the placement remains
appropriate.
(2) Beginning December 1, 2010, and every six months thereafter,
the secretary shall report to the governor and the appropriate
committees of the legislature regarding the use of the authority under
this section to transfer persons to a secure facility. The report
shall include information related to the number of persons who have
been placed in a secure facility operated by the secretary or the
secretary of the department of corrections, and the length of time that
each such person has been in the secure facility.
(3) This section expires June 30, 2015.
NEW SECTION. Sec. 3 (1) The Washington state institute for
public policy shall, in collaboration with the department of social and
health services and other applicable entities, undertake a search for
validated mental health assessment tools in each of the following
areas:
(a) An assessment tool or combination of tools to be used by
individuals performing court-ordered competency assessments and level
of risk assessments of defendants pursuant to chapter 10.77 RCW; and
(b) An assessment tool or combination of tools to be used by
individuals developing recommendations to courts as to the
appropriateness of conditional release from inpatient treatment of
criminally insane patients pursuant to chapter 10.77 RCW.
(2) This section expires June 30, 2011.
Sec. 4 RCW 10.77.120 and 2000 c 94 s 15 are each amended to read
as follows:
(1) The secretary shall ((forthwith)) provide adequate care and
individualized treatment to persons found criminally insane at one or
several of the state institutions or facilities under ((his or her))
the direction and control ((wherein persons committed as criminally
insane may be confined. Such persons shall be under the custody and
control of the secretary to the same extent as are other persons who
are committed to the secretary's custody, but such provision shall be
made for their control, care, and treatment as is proper in view of
their condition)) of the secretary. In order that the secretary may
adequately determine the nature of the mental illness or developmental
disability of the person committed ((to him or her)) as criminally
insane, ((and in order for the secretary to place such individuals in
a proper facility,)) all persons who are committed to the secretary as
criminally insane shall be promptly examined by qualified personnel in
((such a manner as)) order to provide a proper evaluation and diagnosis
of such individual. The examinations of all ((developmentally
disabled)) persons with developmental disabilities committed under this
chapter shall be performed by developmental disabilities professionals.
Any person so committed shall not be released from the control of the
secretary ((save upon the)) except by order of a court of competent
jurisdiction made after a hearing and judgment of release.
(2) Whenever there is a hearing which the committed person is
entitled to attend, the secretary shall send ((him or her)) the person
in the custody of one or more department employees to the county
((where)) in which the hearing is to be held at the time the case is
called for trial. During the time the person is absent from the
facility, ((he or she shall)) the person may be confined in a facility
designated by and arranged for by the department, ((and)) but shall at
all times be deemed to be in the custody of the department employee and
provided necessary treatment. If the decision of the hearing remits
the person to custody, the department employee shall ((forthwith))
return the person to such institution or facility designated by the
secretary. If the state appeals an order of release, such appeal shall
operate as a stay, and the person shall remain in custody ((shall so
remain)) and be ((forthwith)) returned to the institution or facility
designated by the secretary until a final decision has been rendered in
the cause.
Sec. 5 RCW 10.77.150 and 1998 c 297 s 41 are each amended to read
as follows:
(1) Persons examined pursuant to RCW 10.77.140 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) In instances in which persons examined pursuant to RCW
10.77.140 have not made application to the secretary for conditional
release, but the secretary, after considering the reports of experts or
professional persons conducting the examination pursuant to RCW
10.77.140, reasonably believes the person may be conditionally
released, the secretary may submit a recommendation for release to the
court of the county that ordered the person's commitment. The
secretary's recommendation must include any proposed terms and
conditions upon which the secretary reasonably believes the person may
be conditionally released. Conditional release may also include
partial release for work, training, or educational purposes. Notice of
the secretary's recommendation under this subsection must be provided
to the person for whom the secretary has made the recommendation for
release and to his or her attorney.
(3)(a) The court of the county which ordered the person's
commitment, upon receipt of an application or recommendation for
conditional release with the secretary's recommendation for conditional
release terms and conditions, shall within thirty days schedule a
hearing. The court may schedule a hearing on applications recommended
for disapproval by the secretary.
(b) 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.
(c) 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 criminal acts
jeopardizing public safety or security.
(d) 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. If the
order of conditional release includes a requirement for the committed
person to report to a community corrections officer, the community
corrections officer shall notify the secretary or the secretary's
designee, if the person is not in compliance with the court-ordered
conditions of release.
(((3))) (4) 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 or upon a change in
mental health condition that renders the patient a potential risk to
the public report ((the failure)) to the court, to the prosecuting
attorney of the county in which the released person was committed, to
the secretary, and to the supervising community corrections officer.
(((4))) (5) Any person, whose application for conditional release
has been denied, may reapply after a period of six months from the date
of denial.
Sec. 6 RCW 10.77.160 and 1993 c 31 s 7 are each amended to read
as follows:
When a conditionally released person is required by the terms of
his or her conditional release to report to a physician, department of
corrections community corrections officer, or medical or mental health
practitioner on a regular or periodic basis, the physician, department
of corrections community corrections officer, medical or mental health
practitioner, or other such person shall monthly, for the first six
months after release and semiannually thereafter, or as otherwise
directed by the court, submit to the court, the secretary, the
institution from which released, and to the prosecuting attorney of the
county in which the person was committed, a report stating whether the
person is adhering to the terms and conditions of his or her
conditional release, and detailing any arrests or criminal charges
filed and any significant change in the person's mental health
condition or other circumstances.
Sec. 7 RCW 10.77.190 and 1998 c 297 s 43 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 of the apprehension before
the close of the next judicial day ((of the apprehension)). The court
shall schedule a hearing within thirty days to determine whether or not
the person's conditional release should be modified or revoked. 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 or their designees 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
secretary of social and health services or the secretary of corrections
or their designees. The secretary 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. 8 RCW 10.77.200 and 2000 c 94 s 16 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 release. 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
release he or she then shall authorize the person to petition the
court.
(2) In instances in which persons have not made application for
release, but the secretary believes, after consideration of 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, that reasonable grounds exist for release, the secretary may
petition the court. If the secretary petitions the court for release
under this subsection, notice of the petition must be provided to the
person who is the subject of the petition and to his or her attorney.
(3) The petition shall be served upon the court and the prosecuting
attorney. The court, upon receipt of the petition for release, 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)) has a developmental disability, 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 criminal acts jeopardizing public safety or
security, unless kept under further control by the court or other
persons or institutions.
(((3))) (4) For purposes of this section, a person affected by a
mental disease or defect in a state of remission is considered to have
a mental disease or defect requiring supervision when the disease may,
with reasonable medical probability, occasionally become active and,
when active, render the person a danger to others. Upon a finding that
the petitioner has a mental disease or defect in a state of remission
under this subsection, the court may deny release, or place or continue
such a person on conditional release.
(5) Nothing contained in this chapter shall prohibit the patient
from petitioning the court for release 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 criminal acts
jeopardizing public safety or security, unless kept under further
control by the court or other persons or institutions.
(6) Nothing contained in this chapter shall prohibit the committed
person from petitioning for release by writ of habeas corpus.
NEW SECTION. Sec. 9 A new section is added to chapter 10.77 RCW
to read as follows:
For persons who have received court approval for conditional
release, the secretary or the secretary's designee shall supervise the
person's compliance with the court-ordered conditions of release. The
level of supervision provided by the secretary shall correspond to the
level of the person's public safety risk. In undertaking supervision
of persons under this section, the secretary shall coordinate with any
treatment providers designated pursuant to RCW 10.77.150(3), any
department of corrections staff designated pursuant to RCW
10.77.150(2), and local law enforcement, if appropriate. The secretary
shall adopt rules to implement this section."
Correct the title.