Bill Summary – FastDemocracy

CERTIFICATION OF ENROLLMENT
                  SECOND SUBSTITUTE SENATE BILL 5664
                       Chapter 288, Laws of 2022
                               (partial veto)
                               67th Legislature
                             2022 Regular Session
   FORENSIC COMPETENCY RESTORATION PROGRAMS—VARIOUS PROVISIONS
                      EFFECTIVE DATE: June 9, 2022
Passed by the Senate March 7, 2022                  CERTIFICATE
  Yeas 49 Nays 0
                                       I, Sarah Bannister, Secretary of
                                       the   Senate   of    the  State  of
              DENNY HECK               Washington, do hereby certify that
President of the Senate                the attached is SECOND SUBSTITUTE
                                       SENATE BILL 5664 as passed by the
                                       Senate     and    the    House   of
                                       Representatives on the dates hereon
Passed by the House March 3, 2022      set forth.
  Yeas 97 Nays 1
                                                 SARAH BANNISTER
            LAURIE JINKINS
                                                                    Secretary
Speaker of the House of
Representatives
Approved March 31, 2022 4:55 PM with                    FILED
the exception of section 9, which is
vetoed.                                             April 1, 2022
                                                Secretary of State
              JAY INSLEE                        State of Washington
Governor of the State of Washington
                      SECOND SUBSTITUTE SENATE BILL 5664
                            AS AMENDED BY THE HOUSE
                   Passed Legislature - 2022 Regular Session
     State of Washington         67th Legislature     2022 Regular Session
     By Senate Ways & Means (originally sponsored by Senators Dhingra,
     Keiser, and Nobles)
     READ FIRST TIME 02/07/22.
      AN ACT Relating to forensic competency restoration programs;
  amending   RCW  10.77.060,   10.77.068,   10.77.086,  10.77.088,  and
  10.77.250; reenacting and amending RCW 10.77.010; adding new sections
  to chapter 10.77 RCW; and declaring an emergency.
  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
     Sec. 1. RCW 10.77.010 and 2021 c 263 s 9 are each reenacted and
 amended to read as follows:
     As used in this chapter:
     (1) "Admission" means acceptance based on medical necessity, of a
 person as a patient.
     (2) "Commitment" means the determination by a court that a person
 should be detained for a period of either evaluation or treatment, or
 both, in an inpatient or a less-restrictive setting.
     (3) "Community behavioral health agency" has the same meaning as
 "licensed or certified behavioral health agency" defined in RCW
 71.24.025.
     (4) "Conditional release" means modification of a court-ordered
 commitment, which may be revoked upon violation of any of its terms.
     (5) 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
                                       p. 1                    2SSB 5664.SL
 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) "Department" means the state department of social and health
 services.
     (7) "Designated crisis responder" has the same meaning as
 provided in RCW 71.05.020.
     (8) "Detention" or "detain" means the lawful confinement of a
 person, under the provisions of this chapter, pending evaluation.
     (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.
     (10) "Developmental disability" means the condition as defined in
 RCW 71A.10.020(5).
     (11) "Discharge" means the termination of hospital medical
 authority. The commitment may remain in place, be terminated, or be
 amended by court order.
     (12) "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.
     (13) "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 person being assisted as manifested by prior charged
 criminal conduct.
     (14) "History of one or more violent acts" means violent acts
 committed during: (a) The ten-year period of time prior to the filing
 of criminal charges; plus (b) the amount of time equal to time spent
 during the ten-year period in a mental health facility or in
 confinement as a result of a criminal conviction.
                                     p. 2                     2SSB 5664.SL
     (15) "Immediate family member" means a spouse, child, stepchild,
 parent, stepparent, grandparent, sibling, or domestic partner.
     (16) "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.
     (17) "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.
     (18) "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 release,
 and a projected possible date for release; and
     (g) The type of residence immediately anticipated for the person
 and possible future types of residences.
     (19) "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 or the American osteopathic board of neurology and
 psychiatry;
     (b) A psychologist licensed as a psychologist pursuant to chapter
 18.83 RCW; ((or))
                                     p. 3                     2SSB 5664.SL
     (c) A psychiatric advanced registered nurse practitioner, as
 defined in RCW 71.05.020; or
     (d) A social worker with a master's or further advanced degree
 from a social work educational program accredited and approved as
 provided in RCW 18.320.010.
     (20) "Release" means legal termination of the court-ordered
 commitment under the provisions of this chapter.
     (21) "Secretary" means the secretary of the department of social
 and health services or his or her designee.
     (22) "Treatment" means any currently standardized medical or
 mental health procedure including medication.
     (23) "Treatment records" include registration and all other
 records concerning persons who are receiving or who at any time have
 received services for mental illness, which are maintained by the
 department,    by    behavioral   health    administrative   services
 organizations and their staffs, by managed care organizations and
 their staffs, and by treatment facilities. Treatment records do not
 include notes or records maintained for personal use by a person
 providing treatment services for the department, behavioral health
 administrative services organizations, managed care organizations, or
 a treatment facility if the notes or records are not available to
 others.
     (24) "Violent act" means behavior that: (a)(i) Resulted in; (ii)
 if completed as intended would have resulted in; or (iii) was
 threatened to be carried out by a person who had the intent and
 opportunity to carry out the threat and would have resulted in,
 homicide, nonfatal injuries, or substantial damage to property; or
 (b) recklessly creates an immediate risk of serious physical injury
 to another person. As used in this subsection, "nonfatal injuries"
 means physical pain or injury, illness, or an impairment of physical
 condition. "Nonfatal injuries" shall be construed to be consistent
 with the definition of "bodily injury," as defined in RCW 9A.04.110.
     (25)   "Authority"  means   the  Washington   state  health   care
 authority.
     Sec. 2.   RCW 10.77.060 and 2021 c 263 s 5 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
                                     p. 4                     2SSB 5664.SL
 appoint or request the secretary to designate a qualified expert or
 professional person, who shall be approved by the prosecuting
 attorney, to evaluate and report upon the mental condition of the
 defendant.
      (b) The signed order of the court shall serve as authority for
 the 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. If the court is advised by any party that the defendant
 may have a developmental disability, the evaluation must be performed
 by a developmental disabilities professional and the evaluator shall
 have    access   to   records   of  the   developmental   disabilities
 administration of the department.
      (c) The evaluator shall assess the defendant in a jail, detention
 facility, in the community, or in court to determine whether a period
 of inpatient commitment will be necessary to complete an accurate
 evaluation. If inpatient commitment is needed, the signed order of
 the court shall serve as authority for the evaluator to request the
 jail or detention facility to transport the defendant to a hospital
 or secure mental health facility for a period of commitment not to
 exceed fifteen days from the time of admission to the facility.
 Otherwise, the evaluator shall complete the evaluation.
     (d) The court may commit the defendant for evaluation to a
 hospital or secure mental health facility without an assessment if:
 (i) The defendant is charged with murder in the first or second
 degree; (ii) the court finds that it is more likely than not that an
 evaluation in the jail will be inadequate to complete an accurate
 evaluation; or (iii) the court finds that an evaluation outside the
 jail setting is necessary for the health, safety, or welfare of the
 defendant. The court shall not order an initial inpatient evaluation
 for any purpose other than a competency evaluation.
     (e) The order shall indicate whether, in the event the defendant
 is committed to a hospital or secure mental health facility for
 evaluation, all parties agree to waive the presence of the defendant
 or to the defendant's remote participation at a subsequent competency
 hearing or presentation of an agreed order if the recommendation of
 the evaluator is for continuation of the stay of criminal
 proceedings, or if the opinion of the evaluator is that the defendant
 remains incompetent and there is no remaining restoration period, and
                                     p. 5                     2SSB 5664.SL
 the hearing is held prior to the expiration of the authorized
 commitment period.
     (f) When a defendant is ordered to be evaluated under this
 subsection (1), or when a party or the court determines at first
 appearance that an order for evaluation under this subsection will be
 requested or ordered if charges are pursued, 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
 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 evaluation 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 evaluation shall include the following:
     (a) A description of the nature of the evaluation;
     (b) A diagnosis or description of the current mental status of
 the defendant;
     (c) If the defendant suffers from a mental disease or defect, or
 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, and an
 evaluation and report by an expert or professional person has been
 provided concluding that the defendant was criminally insane at the
 time of the alleged offense, 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
                                     p. 6                     2SSB 5664.SL
 public safety or security, unless kept under further control by the
 court or other persons or institutions, provided that no opinion
 shall be rendered under this subsection (3)(d) unless the evaluator
 or court determines that the defendant is competent to stand trial;
     (e) When directed by the court, if an evaluation and report by an
 expert or professional person has been provided concluding that the
 defendant lacked the capacity at the time of the offense to form the
 mental state necessary to commit the charged offense, 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 designated crisis responder under chapter 71.05 RCW.
     (4) The secretary may execute such agreements as appropriate and
 necessary to implement this section and may choose to designate more
 than one evaluator.
     (5) In the event that a person remains in jail more than 21 days
 after service on the department of a court order to transport the
 person to a facility designated by the department for inpatient
 competency restoration treatment, upon the request of any party and
 with notice to all parties, the department shall perform a competency
 to stand trial status check to determine if the circumstances of the
 person have changed such that the court should authorize an updated
 competency evaluation. The status update shall be provided to the
 parties and the court. Status updates may be provided at reasonable
 intervals.
     Sec. 3. RCW 10.77.068 and 2015 c 5 s 1 are each amended to read
 as follows:
     (1