BILL REQ. #:  S-1639.2 

READ FIRST TIME 02/21/11.   

     AN ACT Relating to streamlining competency evaluation and competency restoration procedures; amending RCW 10.77.060, 10.77.065, and 10.77.084; amending 2010 c 280 s 5 (uncodified); adding a new section to chapter 10.77 RCW; and creating a new section.

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

Sec. 1   RCW 10.77.060 and 2004 c 9 s 1 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)) a qualified expert((s)) or professional person((s)), ((one of whom)) who shall be approved by the prosecuting attorney, to ((examine)) evaluate and report upon the mental condition of the defendant. If the defendant is charged with aggravated murder, the court may require the appointment of two evaluators. The signed order of the court shall serve as authority for the ((experts)) evaluator to be given access to all records held by any mental health, medical, educational, or correctional facility that relate to the present or past mental, emotional, or physical 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)) have a developmental disability, the examination must be performed by a developmental disabilities professional. ((Upon agreement of the parties, the court may designate one expert or professional person to conduct the examination and report on the mental condition of the defendant. For purposes of the examination, the court may order))
     (b) The order of the court shall require the evaluation to take place in the community or in a jail or detention facility. In the case of an evaluation in a jail or detention facility which is performed by an evaluator designated by the secretary, the signed order of the court shall grant authority to the evaluator to cause the jail to transport the defendant ((committed)) to a hospital or other suitably secure public or private mental health facility for a period of ((time necessary to complete the examination, but)) commitment not to exceed fifteen days from the time of admission to the facility, if the evaluator determines that inpatient commitment is necessary in order to complete an accurate evaluation. Such commitment shall not extend beyond the reasonable time needed to complete the evaluation. If the evaluator determines that inpatient commitment is necessary, the evaluator shall promptly notify the court and all parties and shall provide an estimated time for the completion of the evaluation. ((If the defendant is being held in jail or other detention facility, upon agreement of the parties, the court may direct that the examination be conducted at the jail or other detention facility.
     (b))) (c) When a defendant is ordered to ((be committed for inpatient examination)) undergo an evaluation under this subsection (1), the court may delay granting bail until the defendant has been evaluated for competency or sanity and appears before the court. Following the evaluation, in determining bail the court shall consider: (i) Recommendations of the ((expert or professional persons)) evaluator 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 expert((s)) or professional person((s)). 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)) has a developmental disability, 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, and an opinion as to whether the defendant presents 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;
     (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 should be evaluated by a ((county)) designated mental health professional under chapter 71.05 RCW((, and an opinion as to whether the defendant 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)).
     (4) The secretary may execute such agreements as appropriate and necessary to implement this section.

Sec. 2   RCW 10.77.065 and 2008 c 213 s 1 are each amended to read as follows:
     (1)(a)(i) The ((facility)) expert conducting the evaluation shall provide ((its)) his or her 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 designated mental health professional, the prosecuting attorney, the defense attorney, and the professional person at the local correctional facility where the defendant is being held, or if there is no professional person, to the person designated under (a)(ii) of this subsection. Upon request, the ((facility)) evaluator shall also provide copies of any source documents relevant to the evaluation to the designated mental health professional. The report and recommendation shall be provided 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.
     (ii) If there is no professional person at the local correctional facility, the local correctional facility shall designate a professional person as defined in RCW 71.05.020 or, in cooperation with the regional support network, a professional person at the regional support network to receive the report and recommendation.
     (iii) ((When a defendant is transferred to the facility conducting the evaluation, or)) Upon commencement of a defendant's evaluation in the local correctional facility, the local correctional facility must notify the evaluator ((or the facility conducting the evaluation)) of the name of the professional person, or person designated under (a)(ii) of this subsection to receive the report and recommendation.
     (b) If the ((facility)) evaluator concludes, under RCW 10.77.060(3)(f), the person should be ((kept under further control, an evaluation shall be conducted)) evaluated by a designated mental health professional, the court shall order the evaluation of such person under chapter 71.05 RCW((. The court shall order an evaluation be conducted by the appropriate designated mental health professional: (i))) prior to release from confinement ((for such person who is convicted, if sentenced to confinement for twenty-four months or less; (ii) for any person who is acquitted; or (iii) for any person: (A) Whose charges are dismissed pursuant to RCW 10.77.086(4); or (B) whose nonfelony charges are dismissed)), if the person is acquitted, convicted and sentenced to confinement for twenty-four months or less, or if the charges are dismissed pursuant to a finding of incompetent to stand trial.
     (2) The 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. The notification shall be provided to the persons identified in subsection (1)(a) of this section.
     (3) The prosecuting attorney shall provide a copy of the results of any proceedings commenced by the designated mental health professional under subsection (2) of this section to the ((facility conducting the evaluation under this chapter)) secretary.
     (4) The fact of admission and all information and records compiled, obtained, or maintained in the course of providing services under this chapter may also be disclosed to the courts solely to prevent the entry of any evaluation or treatment order that is inconsistent with any order entered under chapter 71.05 RCW.

Sec. 3   RCW 10.77.084 and 2007 c 375 s 3 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, a defendant is incompetent, the court shall order the proceedings against the defendant be stayed except as provided in subsection (4) of this section.
     (b) ((A defendant found incompetent shall be evaluated at the direction of the secretary and a determination made whether the defendant is an individual with a developmental disability. 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.
     (i) When appropriate, and subject to available funds, if the defendant is determined to be an individual with a developmental disability, 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. A copy of the evaluation shall be sent to the program.
     (A) The program shall be separate from programs serving persons involved in any other treatment or habilitation program.
     (B) The program shall be appropriately secure under the circumstances and shall be administered by developmental disabilities professionals who shall direct the habilitation efforts.
     (C) The program shall provide an environment affording security appropriate with the charged criminal behavior and necessary to protect the public safety.
     (ii) 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.
     (iii) The department may establish admission priorities in the event that the number of eligible persons exceeds the limits set by the department.
     (c))) At the end of the mental health treatment and restoration period, if any, or at any time a professional person determines competency has been, or is unlikely to be, restored, the defendant shall be returned to court for a hearing. If, after notice and hearing, competency has been restored, the stay entered under (a) of this subsection shall be lifted. If competency has not been restored, the proceedings shall be dismissed. If the court concludes that competency has not been restored, but that further treatment within the time limits established by RCW 10.77.086 or 10.77.088 is likely to restore competency, the court may order that treatment for purposes of competency restoration be continued. Such treatment may not extend beyond the combination of time provided for in RCW 10.77.086 or 10.77.088.
     (((d))) (c) If at any time during the proceeding the court finds, following notice and hearing, a defendant is not likely to regain competency, the proceedings shall be dismissed and the defendant shall be evaluated for civil commitment proceedings.
     (2) If the defendant is referred to the designated mental health professional for consideration of initial detention proceedings under chapter 71.05 RCW pursuant to this chapter, the designated mental health professional shall provide prompt written notification of the results of the determination whether to commence initial detention proceedings under chapter 71.05 RCW and whether the person was detained. The notification shall be provided to the court in which the criminal action was pending, the prosecutor, the defense attorney in the criminal action, and the facility that evaluated the defendant for competency.
     (3) 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.
     (4) 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.
     (5) 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 evaluation report ((of examination)) which meets the requirements of RCW 10.77.060(3). If the defendant is charged with a felony, the report of the first restoration period must include an assessment of the defendant's future dangerousness which is evidence-based regarding predictive validity.

NEW SECTION.  Sec. 4   A new section is added to chapter 10.77 RCW to read as follows:
     (1) A defendant found incompetent shall be evaluated at the direction of the secretary and a determination made whether the defendant is an individual with a developmental disability. The evaluation and determination must be accomplished as soon as possible following the court's placement of the defendant in the custody of the secretary.
     (2) When appropriate, and subject to available funds, if the defendant is determined to be an individual with a developmental disability, he or she may be placed in a program specifically reserved for the treatment and training of persons with developmental disabilities where the defendant has the right to habilitation according to an individualized service plan specifically developed for the particular needs of the defendant. A copy of the evaluation must be sent to the program.
     (a) The program must be separate from programs serving persons involved in any other treatment or habilitation program.
     (b) The program must be appropriately secure under the circumstances and must be administered by developmental disabilities professionals who shall direct the habilitation efforts.
     (c) The program shall provide an environment affording security appropriate with the charged criminal behavior and necessary to protect the public safety.
     (3) 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.
     (4) The department may establish admission priorities in the event that the number of eligible persons exceeds the limits set by the department.

NEW SECTION.  Sec. 5   The legislature does not intend to increase or decrease the prevailing waiting times for competency evaluations as a result of this act. Rather, the intent of this act is to capture savings by reducing state hospital admissions to the extent practicable without sacrificing the quality of competency evaluations or increasing the burden on counties or jails. The department of social and health services shall provide adequate staffing for competency evaluations so that the increase in the proportion of competency evaluations performed in a jail or secure detention facility as a result of this act does not cause the number of jail days consumed by defendants waiting for a competency evaluation to increase during the 2011-2013 biennium.

Sec. 6   2010 c 280 s 5 (uncodified) is amended to read as follows:
     Sections 2 and 3 of this act take effect January 1, ((2012)) 2013.