Chapter 10.77 RCW

CRIMINALLY INSANEPROCEDURES

Sections

10.77.010Definitions.
10.77.020Rights of person under this chapter.
10.77.025Maximum term of commitment or treatment.
10.77.027Eligible for commitment regardless of cause.
10.77.030Establishing insanity as a defense.
10.77.040Instructions to jury on special verdict.
10.77.050Mental incapacity as bar to proceedings.
10.77.060Plea of not guilty due to insanityDoubt as to competencyEvaluationBailReport.
10.77.065Mental condition evaluationsReports and recommendations requiredDischarge of defendant when determined competent to stand trial.
10.77.068Competency to stand trial, admissions for inpatient restoration servicesPerformance targets and maximum time limitsDuties of the departmentReportNew entitlement or cause of action not createdNo basis for contempt or motion to dismiss.
10.77.070Examination rights of defendant's expert or professional person.
10.77.073Competency to stand trialEvaluationAppointment of qualified expert or professional person.
10.77.075Competency evaluation or competency restoration treatmentCourt order.
10.77.078Competency evaluation or restoration servicesOffer of admissionCity or county jail to transport defendant.
10.77.079Competency to stand trialContinuation of competency process, dismissal of chargesExceptions.
10.77.080Motion for acquittal on grounds of insanityHearingFindings.
10.77.084Stay of proceedingsTreatmentRestoration of competencyCommitmentOther procedures.
10.77.0845Evaluation and determination of individual with developmental disabilityProgram placementAdmissions, limitation.
10.77.086CommitmentProcedure in felony charge.
10.77.088PlacementProcedure in nonfelony charge.
10.77.091PlacementSecure facilityTreatment and rightsCustodyReports.
10.77.092Involuntary medicationSerious offenses.
10.77.093Involuntary medicationCivil commitment.
10.77.094Antipsychotic medication, administration.
10.77.095FindingsDevelopmental disabilities.
10.77.097Records and reports accompany defendant upon transfer.
10.77.100Experts or professional persons as witnesses.
10.77.110Acquittal of crime.
10.77.120Care and treatment of committed personHearingsRelease.
10.77.140Periodic examinationsDevelopmentally disabledReportsNotice to court.
10.77.145Authorization to leave facility where person is confined prohibitedExceptionsApproval by secretaryNotification to county or city law enforcement agency.
10.77.150Conditional releaseApplicationSecretary's recommendationOrderProcedure.
10.77.152Conditional releaseApplicationCounty of origin.
10.77.155Conditional release, furloughSecretary's recommendation.
10.77.160Conditional releaseReports.
10.77.163FurloughNoticeTemporary restraining order.
10.77.165Escape or disappearanceNotification requirements.
10.77.170Payments to conditionally released persons.
10.77.180Conditional releasePeriodic review of case.
10.77.190Conditional releaseRevocation or modification of termsProcedure.
10.77.195Conditional releaseCourt approvalComplianceSecretary to coordinate with designated treatment providers, department of corrections staff, and local law enforcementRules.
10.77.200ReleaseProcedure.
10.77.205Sexual or violent offendersNotice of release, escape, etc.Definitions.
10.77.207Persons acquitted of sex offense due to insanityRelease of information authorized.
10.77.210Right to adequate care and treatmentRecords and reports.
10.77.2101Implementation of legislative intent.
10.77.220Incarceration in correctional institution or facility prohibitedExceptions.
10.77.230Appellate review.
10.77.240Existing rights not affected.
10.77.250Responsibility for costsReimbursement.
10.77.260Violent actPresumptions.
10.77.270Independent public safety review panelMembersSecretary to submit recommendationAccess to recordsSupport, rulesReport.
10.77.280Office of forensic mental health services.
10.77.290Secretary to adopt rules2015 1st sp.s. c 7.
10.77.940Equal application of 1989 c 420Evaluation for developmental disability.
10.77.950ConstructionChapter applicable to state registered domestic partnerships2009 c 521.

NOTES:

Rules of court: Cf. CrR 4.2(c).
Individuals with mental illness, commitment: Chapter 71.05 RCW.
Protocols required: RCW 71.05.214.


10.77.010
Definitions.

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) "Conditional release" means modification of a court-ordered commitment, which may be revoked upon violation of any of its terms.
(4) 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 criminal acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions.
(5) "Department" means the state department of social and health services.
(6) "Designated crisis responder" has the same meaning as provided in RCW 71.05.020.
(7) "Detention" or "detain" means the lawful confinement of a person, under the provisions of this chapter, pending evaluation.
(8) "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.
(9) "Developmental disability" means the condition as defined in RCW 71A.10.020(5).
(10) "Discharge" means the termination of hospital medical authority. The commitment may remain in place, be terminated, or be amended by court order.
(11) "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.
(12) "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.
(13) "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.
(14) "Immediate family member" means a spouse, child, stepchild, parent, stepparent, grandparent, sibling, or domestic partner.
(15) "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.
(16) "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.
(17) "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.
(18) "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
(c) 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.
(19) "Registration records" include all the records of the department, behavioral health organizations, treatment facilities, and other persons providing services to the department, county departments, or facilities which identify persons who are receiving or who at any time have received services for mental illness.
(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 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 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.

NOTES:

Effective dates2016 sp.s. c 29: See note following RCW 71.05.760.
Short titleRight of action2016 sp.s. c 29: See notes following RCW 71.05.010.
Effective date2014 c 225: See note following RCW 71.24.016.
Effective date2011 c 89: See note following RCW 18.320.005.
Findings2011 c 89: See RCW 18.320.005.
FindingsIntentSeverabilityApplicationConstructionCaptions, part headings, subheadings not lawAdoption of rulesEffective dates2005 c 504: See notes following RCW 71.05.027.
AlphabetizationCorrection of references2005 c 504: See note following RCW 71.05.020.
FindingsIntent2004 c 157: "The legislature finds that recent state and federal case law requires clarification of state statutes with regard to competency evaluations and involuntary medication ordered in the context of competency restoration.
The legislature finds that the court in Born v. Thompson, 117 Wn. App. 57 (2003) interpreted the term "nonfatal injuries" in a manner that conflicts with the stated 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; ... 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" as stated in section 1, chapter 297, Laws of 1998. Consequently, the legislature intends to clarify that it intended "nonfatal injuries" to be interpreted in a manner consistent with the purposes of the competency restoration statutes.
The legislature also finds that the decision in Sell v. United States, ___U.S. ____ (2003), requires a determination whether a particular criminal offense is "serious" in the context of competency restoration and the state's duty to protect the public. The legislature further finds that, in order to adequately protect the public and in order to provide additional opportunities for mental health treatment for persons whose conduct threatens themselves or threatens public safety and has led to contact with the criminal justice system in the state, the determination of those criminal offenses that are "serious" offenses must be made consistently throughout the state. In order to facilitate this consistency, the legislature intends to determine those offenses that are serious in every case as well as the standards by which other offenses may be determined to be serious. The legislature also intends to clarify that a court may, to the extent permitted by federal law and required by the Sell decision, inquire into the civil commitment status of a defendant and may be told, if known." [ 2004 c 157 § 1.]
Severability2004 c 157: "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." [ 2004 c 157 § 7.]
Effective date2004 c 157: "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 immediately [March 26, 2004]." [ 2004 c 157 § 8.]
PurposeConstruction1999 c 13: "The purpose of this act is to make technical nonsubstantive changes to chapters 10.77 and 71.05 RCW. No provision of this act shall be construed as a substantive change in the provisions dealing with persons charged with crimes who are subject to evaluation under chapter 10.77 or 71.05 RCW." [ 1999 c 13 § 1.]
Alphabetization of section1998 c 297 § 29: "The code reviser shall alphabetize the definitions in RCW 10.77.010 and correct any references." [ 1998 c 297 § 51.]
Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.020
Rights of person under this chapter.

(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 the secretary to be fair and reasonable.
(3) 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.
(4) In a competency evaluation conducted under this chapter, 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.
(5) In a sanity evaluation conducted under this chapter, if a defendant refuses to answer questions or to participate in an examination conducted in response to the defendant's assertion of an insanity defense, the court shall exclude from evidence at trial any testimony or evidence from any expert or professional person obtained or retained by the defendant.

NOTES:

Application2006 c 109: "This act applies to all examinations performed on or after June 7, 2006." [ 2006 c 109 § 2.]
Severability2006 c 109: "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." [ 2006 c 109 § 3.]
Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.025
Maximum term of commitment or treatment.

(1) Whenever any person has been: (a) Committed to a correctional facility or inpatient treatment under any provision of this chapter; or (b) 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 released 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 that the person presents a likelihood of serious harm or is gravely disabled due to a mental disorder, the professional person shall, prior to the expiration of the maximum penal sentence, notify the appropriate designated crisis responder of the impending expiration and provide a copy of all relevant information regarding the person, including the likely release date and shall indicate why the person should not be released.
(3) A designated crisis responder who receives notice and records under subsection (2) of this section shall, prior to the date of the expiration of the maximum sentence, determine whether to initiate proceedings under chapter 71.05 RCW.

NOTES:

Effective dates2016 sp.s. c 29: See note following RCW 71.05.760.
Short titleRight of action2016 sp.s. c 29: See notes following RCW 71.05.010.
Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.027
Eligible for commitment regardless of cause.

When a designated crisis responder or a professional person has determined that a person has a mental disorder, and is otherwise committable, the cause of the person's mental disorder shall not make the person ineligible for commitment under chapter 71.05 RCW.

NOTES:

Effective dates2016 sp.s. c 29: See note following RCW 71.05.760.
Short titleRight of action2016 sp.s. c 29: See notes following RCW 71.05.010.
SeverabilityEffective dates2004 c 166: See notes following RCW 71.05.040.



10.77.030
Establishing insanity as a defense.

(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.

NOTES:

Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.040
Instructions to jury on special verdict.

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 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?
 . . . . .

NOTES:

Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.050
Mental incapacity as bar to proceedings.

No incompetent person shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues.



10.77.060
Plea of not guilty due to insanity—Doubt as to competency—Evaluation—Bail—Report.

(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 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.
(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 the hearing is held prior to the expiration of the authorized commitment period.
(f) When a defendant is ordered to be committed for inpatient 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 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 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.

NOTES:

Effective dates2016 sp.s. c 29: See note following RCW 71.05.760.
Short titleRight of action2016 sp.s. c 29: See notes following RCW 71.05.010.
PurposeEffective date2012 c 256: See notes following RCW 10.77.068.
Severability2000 c 74: "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." [ 2000 c 74 § 8.]
Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.065
Mental condition evaluations—Reports and recommendations required—Discharge of defendant when determined competent to stand trial.

(1)(a)(i) The expert conducting the evaluation shall provide his or her report and recommendation to the court in which the criminal proceeding is pending. For a competency evaluation of a defendant who is released from custody, if the evaluation cannot be completed within twenty-one days due to a lack of cooperation by the defendant, the evaluator shall notify the court that he or she is unable to complete the evaluation because of such lack of cooperation.
(ii) A copy of the report and recommendation shall be provided to the designated crisis responder, 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)(iv) of this subsection. Upon request, the evaluator shall also provide copies of any source documents relevant to the evaluation to the designated crisis responder.
(iii) Any facility providing inpatient services related to competency shall discharge the defendant as soon as the facility determines that the defendant is competent to stand trial. Discharge shall not be postponed during the writing and distribution of the evaluation report. Distribution of an evaluation report by a facility providing inpatient services shall ordinarily be accomplished within two working days or less following the final evaluation of the defendant. If the defendant is discharged to the custody of a local correctional facility, the local correctional facility must continue the medication regimen prescribed by the facility, when clinically appropriate, unless the defendant refuses to cooperate with medication and an involuntary medication order by the court has not been entered.
(iv) 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 behavioral health organization, a professional person at the behavioral health organization to receive the report and recommendation.
(v) Upon commencement of a defendant's evaluation in the local correctional facility, the local correctional facility must notify the evaluator of the name of the professional person, or person designated under (a)(iv) of this subsection, to receive the report and recommendation.
(b) If the evaluator concludes, under RCW 10.77.060(3)(f), the person should be evaluated by a designated crisis responder under chapter 71.05 RCW, the court shall order such evaluation be conducted prior to release from confinement when the person is acquitted or convicted and sentenced to confinement for twenty-four months or less, or when charges are dismissed pursuant to a finding of incompetent to stand trial.
(2) The designated crisis responder 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 crisis responder under subsection (2) of this section to the secretary.
(4) A facility conducting a civil commitment evaluation under RCW 10.77.086(4) or 10.77.088(1)(c)(ii) that makes a determination to release the person instead of filing a civil commitment petition must provide written notice to the prosecutor and defense attorney at least twenty-four hours prior to release. The notice may be given by email, facsimile, or other means reasonably likely to communicate the information immediately.
(5) 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.

NOTES:

Effective dates2016 sp.s. c 29: See note following RCW 71.05.760.
Short titleRight of action2016 sp.s. c 29: See notes following RCW 71.05.010.
Finding2015 1st sp.s. c 7: See note following RCW 10.77.075.
Effective dates2015 1st sp.s. c 7: See note following RCW 10.77.073.
Effective date2014 c 225: See note following RCW 71.24.016.
Finding2014 c 10: See note following RCW 10.77.092.
PurposeEffective date2012 c 256: See notes following RCW 10.77.068.
Severability2000 c 74: See note following RCW 10.77.060.
Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.068
Competency to stand trial, admissions for inpatient restoration services—Performance targets and maximum time limits—Duties of the department—Report—New entitlement or cause of action not created—No basis for contempt or motion to dismiss.

(1)(a) The legislature establishes the following performance targets and maximum time limits for the timeliness of the completion of accurate and reliable evaluations of competency to stand trial and admissions for inpatient restoration services related to competency to proceed or stand trial for adult criminal defendants. The legislature recognizes that these targets may not be achievable in all cases without compromise to the quality of competency evaluation and restoration services, but intends for the department to manage, allocate, and request appropriations for resources in order to meet these targets whenever possible without sacrificing the accuracy and quality of competency evaluations and restorations, and to otherwise make sustainable improvements and track performance related to the timeliness of competency services:
(i) For a state hospital to extend an offer of admission to a defendant in pretrial custody for legally authorized evaluation services related to competency, or to extend an offer of admission for legally authorized services following dismissal of charges based on incompetence to proceed or stand trial:
(A) A performance target of seven days or less; and
(B) A maximum time limit of fourteen days;
(ii) For a state hospital to extend an offer of admission to a defendant in pretrial custody for legally authorized inpatient restoration treatment related to competency:
(A) A performance target of seven days or less; and
(B) A maximum time limit of fourteen days;
(iii) For completion of a competency evaluation in jail and distribution of the evaluation report for a defendant in pretrial custody:
(A) A performance target of seven days or less; and
(B) A maximum time limit of fourteen days, plus an additional seven-day extension if needed for clinical reasons to complete the evaluation at the determination of the department;
(iv) For completion of a competency evaluation in the community and distribution of the evaluation report for a defendant who is released from custody and makes a reasonable effort to cooperate with the evaluation, a performance target of twenty-one days or less.
(b) The time periods measured in these performance targets and maximum time limits shall run from the date on which the state hospital receives the court referral and charging documents, discovery, police reports, the names and addresses of the attorneys for the defendant and state or county, the name of the judge ordering the evaluation, information about the alleged crime, and criminal history information related to the defendant. The maximum time limits in (a) of this subsection shall be phased in over a one-year period beginning July 1, 2015, in a manner that results in measurable incremental progress toward meeting the time limits over the course of the year.
(c) It shall be a defense to an allegation that the department has exceeded the maximum time limits for completion of competency services described in (a) of this subsection if the department can demonstrate by a preponderance of the evidence that the reason for exceeding the maximum time limits was outside of the department's control including, but not limited to, the following circumstances:
(i) Despite a timely request, the department has not received necessary medical clearance information regarding the current medical status of a defendant in pretrial custody for the purposes of admission to a state hospital;
(ii) The individual circumstances of the defendant make accurate completion of an evaluation of competency to proceed or stand trial dependent upon review of mental health, substance use disorder, or medical history information which is in the custody of a third party and cannot be immediately obtained by the department. Completion of a competency evaluation shall not be postponed for procurement of mental health, substance use disorder, or medical history information which is merely supplementary to the competency determination;
(iii) Completion of the referral is frustrated by lack of availability or participation by counsel, jail or court personnel, interpreters, or the defendant;
(iv) The department does not have access to appropriate private space to conduct a competency evaluation for a defendant in pretrial custody;
(v) The defendant asserts legal rights that result in a delay in the provision of competency services; or
(vi) An unusual spike in the receipt of evaluation referrals or in the number of defendants requiring restoration services has occurred, causing temporary delays until the unexpected excess demand for competency services can be resolved.
(2) The department shall:
(a) Develop, document, and implement procedures to monitor the clinical status of defendants admitted to a state hospital for competency services that allow the state hospital to accomplish early discharge for defendants for whom clinical objectives have been achieved or may be achieved before expiration of the commitment period;
(b) Investigate the extent to which patients admitted to a state hospital under this chapter overstay time periods authorized by law and take reasonable steps to limit the time of commitment to authorized periods; and
(c) Establish written standards for the productivity of forensic evaluators and utilize these standards to internally review the performance of forensic evaluators.
(3) Following any quarter in which a state hospital has failed to meet one or more of the performance targets or maximum time limits in subsection (1) of this section after full implementation of the performance target or maximum time limit, the department shall report to the executive and the legislature the extent of this deviation and describe any corrective action being taken to improve performance. This report must be made publicly available. An average may be used to determine timeliness under this subsection.
(4) Beginning December 1, 2013, the department shall report annually to the legislature and the executive on the timeliness of services related to competency to proceed or stand trial and the timeliness with which court referrals accompanied by charging documents, discovery, and criminal history information are provided to the department relative to the signature date of the court order. The report must be in a form that is accessible to the public and that breaks down performance by county.
(5) This section does not create any new entitlement or cause of action related to the timeliness of competency evaluations or admission for inpatient restoration services related to competency to proceed or stand trial, nor can it form the basis for contempt sanctions under chapter 7.21 RCW or a motion to dismiss criminal charges.

NOTES:

Purpose2012 c 256: "The purpose of this act is to sustainably improve the timeliness of services related to competency to stand trial by setting performance expectations, establishing new mechanisms for accountability, and enacting reforms to ensure that forensic resources are expended in an efficient and clinically appropriate manner without diminishing the quality of competency services, and to reduce the time defendants with mental illness spend in jail awaiting evaluation and restoration of competency." [ 2012 c 256 § 1.]
Effective date2012 c 256: "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 May 1, 2012." [ 2012 c 256 § 14.]



10.77.070
Examination rights of defendant's expert or professional person.

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.

NOTES:

Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.073
Competency to stand trial—Evaluation—Appointment of qualified expert or professional person. (Expires June 30, 2019.)

(1) The department shall reimburse a county for the cost of appointing a qualified expert or professional person under RCW 10.77.060(1)(a) subject to subsections (2) through (4) of this section if, at the time of a referral for an evaluation of competency to stand trial in a jail for an in-custody defendant, the department: (a) During the most recent quarter, did not perform at least one-third of the number of jail-based competency evaluations for in-custody defendants as were performed by qualified experts or professional persons appointed by the court in the referring county; or (b) did not meet the performance target for timely completion of competency evaluations under RCW 10.77.068(1)(a)(iii) during the most recent quarter in fifty percent of cases submitted by the referring county, as documented in the most recent quarterly report under RCW 10.77.068(3) or confirmed by records maintained by the department.
(2) Appointment of a qualified expert or professional person under this section must be from a list of qualified experts or professional persons assembled with participation by representatives of the prosecuting attorney and the defense bar of the county. The qualified expert or professional person shall complete an evaluation and report that includes the components specified in RCW 10.77.060(3).
(3) The county shall provide a copy of the evaluation report to the applicable state hospital upon referral of the defendant for admission to the state hospital. The county shall:
(a) In consultation with the department, develop and maintain critical data elements, including data on the timeliness of competency evaluations completed under this section; and
(b) Share this data with the department upon the department's request.
(4) A qualified expert or professional person appointed by a court under this section must be compensated for competency evaluations in an amount that will encourage in-depth evaluation reports. Subject to the availability of amounts appropriated for this specific purpose, the department shall reimburse the county in an amount determined by the department to be fair and reasonable with the county paying any excess costs. The amount of reimbursement established by the department must at least meet the equivalent amount for evaluations conducted by the department.
(5) Nothing in this section precludes either party from objecting to the appointment of an evaluator on the basis that an inpatient evaluation is appropriate under RCW 10.77.060(1)(d).
(6) This section expires June 30, 2019.

NOTES:

Effective dates2015 1st sp.s. c 7: "(1) Section 7 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 immediately [June 10, 2015].
(2) Sections 1 through 6 and 8 through 15 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect July 1, 2015.
(3) Section 16 of this act takes effect April 1, 2016." [ 2015 1st sp.s. c 7 § 19.]
Finding2015 1st sp.s. c 7: See note following RCW 10.77.075.
Data gathering and report2013 c 284: "Within current resources, the office of the state human resources director shall gather market salary data related to psychologists and psychiatrists employed by the department of social and health services and department of corrections and report to the governor and relevant committees of the legislature by June 30, 2013." [ 2013 c 284 § 2.]
Effective date2013 c 284: "Section 2 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 immediately [May 16, 2013]." [ 2013 c 284 § 3.]



10.77.075
Competency evaluation or competency restoration treatment—Court order.

Within twenty-four hours of the signing of a court order requesting the secretary to provide a competency evaluation or competency restoration treatment:
(1) The clerk of the court shall provide the court order and the charging documents, including the request for bail and certification of probable cause, to the state hospital. If the order is for competency restoration treatment and the competency evaluation was provided by a qualified expert or professional person who was not designated by the secretary, the clerk shall also provide the state hospital with a copy of all previous court orders related to competency or criminal insanity and a copy of any of the evaluation reports;
(2) The prosecuting attorney shall provide the discovery packet, including a statement of the defendant's criminal history, to the state hospital; and
(3) If the court order requires transportation of the defendant to a state hospital, the jail administrator shall provide the defendant's medical clearance information to the state hospital admission staff.

NOTES:

Finding2015 1st sp.s. c 7: "(1) The legislature finds that there are currently no alternatives to competency restoration provided in the state hospitals. Subject to the availability of amounts appropriated for this specific purpose, the legislature encourages the department of social and health services to develop, on a phased-in basis, alternative locations and increased access to competency restoration services under chapter 10.77 RCW for individuals who do not require inpatient psychiatric hospitalization level services.
(2) The department of social and health services shall work with counties and the court to develop a screening process to determine which individuals are safe to receive competency restoration treatment outside the state hospitals." [ 2015 1st sp.s. c 7 § 1.]
Effective dates2015 1st sp.s. c 7: See note following RCW 10.77.073.



10.77.078
Competency evaluation or restoration services—Offer of admission—City or county jail to transport defendant.

(1) A city or county jail shall transport a defendant to a state hospital or other secure facility designated by the department within one day of receipt of an offer of admission of the defendant for competency evaluation or restoration services.
(2) City and county jails must cooperate with competency evaluators and the department to arrange for competency evaluators to have reasonable, timely, and appropriate access to defendants for the purpose of performing evaluations under this chapter to accommodate the seven-day performance target for completing competency evaluations for defendants in custody.

NOTES:

Finding2015 1st sp.s. c 7: See note following RCW 10.77.075.
Effective dates2015 1st sp.s. c 7: See note following RCW 10.77.073.



10.77.079
Competency to stand trial—Continuation of competency process, dismissal of charges—Exceptions.

(1) If the issue of competency to stand trial is raised by the court or a party under RCW 10.77.060, the prosecutor may continue with the competency process or dismiss the charges without prejudice and refer the defendant for assessment by a mental health professional, chemical dependency professional, or developmental disabilities professional to determine the appropriate service needs for the defendant.
(2) This section does not apply to defendants with a current charge or prior conviction for a violent offense or sex offense as defined in RCW 9.94A.030, or a violation of RCW 9A.36.031(1) (d), (f), or (h).

NOTES:

Finding2015 1st sp.s. c 7: See note following RCW 10.77.075.
Effective dates2015 1st sp.s. c 7: See note following RCW 10.77.073.



10.77.080
Motion for acquittal on grounds of insanity—Hearing—Findings.

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 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. If the motion is denied, the question may be submitted to the trier of fact in the same manner as other issues of fact.

NOTES:

Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.084
Stay of proceedings—Treatment—Restoration of competency—Commitment—Other procedures.

(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) The court may order a defendant who has been found to be incompetent to undergo competency restoration treatment at a facility designated by the department if the defendant is eligible under RCW 10.77.086 or 10.77.088. At the end of each competency restoration period 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, except that if the opinion of the professional person is that the defendant remains incompetent and the hearing is held before the expiration of the current competency restoration period, the parties may agree to waive the defendant's presence, to remote participation by the defendant at a hearing, or to presentation of an agreed order in lieu of a hearing. The facility shall promptly notify the court and all parties of the date on which the competency restoration period commences and expires so that a timely hearing date may be scheduled.
(c) If, following notice and hearing or entry of an agreed order under (b) of this subsection, the court finds that competency has been restored, the court shall lift the stay entered under (a) of this subsection. If the court finds that competency has not been restored, the court shall dismiss the proceedings without prejudice, except that the court may order a further period of competency restoration treatment if it finds that further treatment within the time limits established by RCW 10.77.086 or 10.77.088 is likely to restore competency, and a further period of treatment is allowed under RCW 10.77.086 or 10.77.088.
(d) If at any time during the proceeding the court finds, following notice and hearing, a defendant is not likely to regain competency, the court shall dismiss the proceedings without prejudice and refer the defendant for civil commitment evaluation or proceedings if appropriate under RCW 10.77.065, 10.77.086, or 10.77.088.
(2) If the defendant is referred for evaluation by a designated crisis responder under this chapter, the designated crisis responder shall provide prompt written notification of the results of the evaluation 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 report of evaluation which meets the requirements of RCW 10.77.060(3). For defendants charged with a felony, the report following the second competency restoration period or first competency restoration period if the defendant's incompetence is determined to be solely due to a developmental disability or the evaluator concludes that the defendant is not likely to regain competency must include an assessment of the defendant's future dangerousness which is evidence-based regarding predictive validity.

NOTES:

Effective dates2016 sp.s. c 29: See note following RCW 71.05.760.
Short titleRight of action2016 sp.s. c 29: See notes following RCW 71.05.010.
Finding2015 1st sp.s. c 7: See note following RCW 10.77.075.
Effective dates2015 1st sp.s. c 7: See note following RCW 10.77.073.
PurposeEffective date2012 c 256: See notes following RCW 10.77.068.
FindingsPurposeConstructionSeverability2007 c 375: See notes following RCW 10.31.110.
Captions not law2007 c 375: "Captions used in this act are not any part of the law." [ 2007 c 375 § 19.]



10.77.0845
Evaluation and determination of individual with developmental disability—Program placement—Admissions, limitation.

(1) A defendant found incompetent by the court under RCW 10.77.084 must 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 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 must 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.

NOTES:

PurposeEffective date2012 c 256: See notes following RCW 10.77.068.



10.77.086
Commitment—Procedure in felony charge.

(1)(a)(i) If the defendant is charged with a felony and determined to be incompetent, 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 a period of no longer than ninety days, the court:
(A) 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
(B) May alternatively order the defendant to undergo evaluation and treatment at some other facility or provider as determined by the department, or under the guidance and control of a professional person. The facilities or providers may include community mental health providers or other local facilities that contract with the department and are willing and able to provide treatment under this section. During the 2015-2017 fiscal biennium, the department may contract with one or more cities or counties to provide competency restoration services in a city or county jail if the city or county jail is willing and able to serve as a location for competency restoration services and if the secretary determines that there is an emergent need for beds and documents the justification, including a plan to address the emergency. Patients receiving competency restoration services in a city or county jail must be physically separated from other populations at the jail and restoration treatment services must be provided as much as possible within a therapeutic environment.
(ii) The ninety day period for evaluation and treatment under this subsection (1) includes only the time the defendant is actually at the facility and is in addition to reasonable time for transport to or from the facility.
(b) For a defendant whose highest charge is a class C felony, or a class B felony that is not classified as violent under RCW 9.94A.030, the maximum time allowed for the initial period of commitment for competency restoration is forty-five days. The forty-five day period includes only the time the defendant is actually at the facility and is in addition to reasonable time for transport to or from the facility.
(c) If the court determines or the parties agree that the defendant is unlikely to regain competency, the court may dismiss the charges without prejudice without ordering the defendant to undergo restoration treatment, in which case the court shall order that the defendant be referred for evaluation for civil commitment in the manner provided in subsection (4) of this section.
(2) On or before expiration of the initial 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.
(3) If the court finds by a preponderance of the evidence that 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 period of ninety days, but the court 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 restoration period. The defendant, the defendant's attorney, or the prosecutor has the right to demand that the hearing be before a jury. No extension shall be ordered for a second or third restoration period as provided in subsection (4) of this section if the defendant's incompetence has been determined 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. The ninety-day period includes only the time the defendant is actually at the facility and is in addition to reasonable time for transport to or from the facility.
(4) For persons charged with a felony, at the hearing upon the expiration of the second restoration period or at the end of the first restoration period in the case of a defendant with a developmental disability, if the jury or court finds that the defendant is incompetent, or if the court or jury at any stage finds that the defendant is incompetent and the court determines that the defendant is unlikely to regain competency, the charges shall be dismissed without prejudice, and the court shall order the defendant be committed to a state hospital as defined in RCW 72.23.010 for up to seventy-two hours starting from admission to the facility, excluding Saturdays, Sundays, and holidays, for evaluation for the purpose of filing a civil commitment petition under chapter 71.05 RCW. The criminal charges shall not be dismissed if 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 criminal acts jeopardizing public safety or security; and (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 up to an additional six months. The six-month period includes only the time the defendant is actually at the facility and is in addition to reasonable time for transport to or from the facility.

NOTES:

Finding2015 1st sp.s. c 7: See note following RCW 10.77.075.
Effective dates2015 1st sp.s. c 7: See note following RCW 10.77.073.
Findings2013 c 289: "The legislature finds that persons with a mental illness or developmental disability are more likely to be victimized by crime than to be perpetrators of crime. The legislature further finds that there are a small number of individuals who commit repeated violent acts against others while suffering from the effects of a mental illness and/or developmental disability that both contributes to their criminal behaviors and renders them legally incompetent to be held accountable for those behaviors. The legislature further finds that the primary statutory mechanisms designed to protect the public from violent behavior, either criminal commitment to a corrections institution, or long-term commitment as not guilty by reason of insanity, are unavailable due to the legal incompetence of these individuals to stand trial. The legislature further finds that the existing civil system of short-term commitments under the Washington's involuntary treatment act is insufficient to protect the public from these violent acts. Finally, the legislature finds that changes to the involuntary treatment act to account for this small number of individuals is necessary in order to serve Washington's compelling interest in public safety and to provide for the proper care of these individuals." [ 2013 c 289 § 1.]
PurposeEffective date2012 c 256: See notes following RCW 10.77.068.
FindingsPurposeConstructionSeverability2007 c 375: See notes following RCW 10.31.110.
Captions not law2007 c 375: See note following RCW 10.77.084.



10.77.088
Placement—Procedure in nonfelony charge.

(1)(a) If the defendant is charged with a nonfelony crime which is a serious offense as identified in RCW 10.77.092 and found by the court to be not competent, then the court:
(i) 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;
(ii) May alternatively order the defendant to undergo evaluation and treatment at some other facility or provider as determined by the department, or under the guidance and control of a professional person. The facilities or providers may include community mental health providers or other local facilities that contract with the department and are willing and able to provide treatment under this section. During the 2015-2017 fiscal biennium, the department may contract with one or more cities or counties to provide competency restoration services in a city or county jail if the city or county jail is willing and able to serve as a location for competency restoration services and if the secretary determines that there is an emergent need for beds and documents the justification, including a plan to address the emergency. Patients receiving competency restoration services in a city or county jail must be physically separated from other populations at the jail and restoration treatment services must be provided as much as possible within a therapeutic environment. The placement under (a)(i) and (ii) of this subsection shall not exceed fourteen days in addition to any unused time of the evaluation under RCW 10.77.060. The court shall compute this total period and include its computation in the order. The fourteen-day period plus any unused time of the evaluation under RCW 10.77.060 shall be considered to include only the time the defendant is actually at the facility and shall be in addition to reasonable time for transport to or from the facility;
(iii) May alternatively order that the defendant be placed on conditional release for up to ninety days for mental health treatment and restoration of competency; or
(iv) May order any combination of this subsection.
(b) If the court has determined or the parties agree that the defendant is unlikely to regain competency, the court may dismiss the charges without prejudice without ordering the defendant to undergo restoration treatment, in which case the court shall order that the defendant be referred for evaluation for civil commitment in the manner provided in (c) of this subsection.
(c)(i) If the proceedings are dismissed under RCW 10.77.084 and the defendant was on conditional release at the time of dismissal, the court shall order the designated crisis responder within that county to evaluate the defendant pursuant to chapter 71.05 RCW. The evaluation may be conducted in any location chosen by the professional.
(ii) If the defendant was in custody and not on conditional release at the time of dismissal, the defendant shall be detained and sent to an evaluation and treatment facility for up to seventy-two hours, excluding Saturdays, Sundays, and holidays, for evaluation for purposes of filing a petition under chapter 71.05 RCW. The seventy-two hour period shall commence upon the next nonholiday weekday following the court order and shall run to the end of the last nonholiday weekday within the seventy-two-hour period.
(2) If the defendant is charged with a nonfelony crime that is not a serious offense as defined in RCW 10.77.092:
The court may stay or dismiss proceedings and detain the defendant for sufficient time to allow the designated crisis responder to evaluate the defendant and consider initial detention 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, and provide an opportunity for a hearing on whether to dismiss the proceedings.

NOTES:

Effective dates2016 sp.s. c 29: See note following RCW 71.05.760.
Short titleRight of action2016 sp.s. c 29: See notes following RCW 71.05.010.
Finding2015 1st sp.s. c 7: See note following RCW 10.77.075.
Effective dates2015 1st sp.s. c 7: See note following RCW 10.77.073.
FindingsPurposeConstructionSeverability2007 c 375: See notes following RCW 10.31.110.
Captions not law2007 c 375: See note following RCW 10.77.084.



10.77.091
Placement—Secure facility—Treatment and rights—Custody—Reports.

(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, and the secretary has given consideration to reasonable alternatives that would be effective to manage the behavior, the secretary may place the person in any secure facility operated by the secretary or the secretary of the department of corrections. The secretary's written decision and reasoning must be documented in the patient's medical file. 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.

NOTES:

Effective date2015 1st sp.s. c 7: "Section 1, chapter 253, Laws of 2015 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 June 30, 2015." [ 2015 1st sp.s. c 7 § 20.]



10.77.092
Involuntary medication—Serious offenses.

(1) For purposes of determining whether a court may authorize involuntary medication for the purpose of competency restoration pursuant to RCW 10.77.084 and for maintaining the level of restoration in the jail following the restoration period, a pending charge involving any one or more of the following crimes is a serious offense per se in the context of competency restoration:
(a) Any violent offense, sex offense, serious traffic offense, and most serious offense, as those terms are defined in RCW 9.94A.030;
(b) Any offense, except nonfelony counterfeiting offenses, included in crimes against persons in RCW 9.94A.411;
(c) Any offense contained in chapter 9.41 RCW (firearms and dangerous weapons);
(d) Any offense listed as domestic violence in RCW 10.99.020;
(e) Any offense listed as a harassment offense in chapter 9A.46 RCW;
(f) Any violation of chapter 69.50 RCW that is a class B felony; or
(g) Any city or county ordinance or statute that is equivalent to an offense referenced in this subsection.
(2)(a) In a particular case, a court may determine that a pending charge not otherwise defined as serious by state or federal law or by a city or county ordinance is, nevertheless, a serious offense within the context of competency restoration treatment when the conduct in the charged offense falls within the standards established in (b) of this subsection.
(b) To determine that the particular case is a serious offense within the context of competency restoration, the court must consider the following factors and determine that one or more of the following factors creates a situation in which the offense is serious:
(i) The charge includes an allegation that the defendant actually inflicted bodily or emotional harm on another person or that the defendant created a reasonable apprehension of bodily or emotional harm to another;
(ii) The extent of the impact of the alleged offense on the basic human need for security of the citizens within the jurisdiction;
(iii) The number and nature of related charges pending against the defendant;
(iv) The length of potential confinement if the defendant is convicted; and
(v) The number of potential and actual victims or persons impacted by the defendant's alleged acts.

NOTES:

Finding2014 c 10: "The legislature finds that there is currently no clear language authorizing courts to order involuntary medications in order to maintain the level of competency restoration in the jail following a competency restoration period and subsequent discharge from a state hospital. This act specifies that maintenance of competency in jail is a purpose for which the court may order a criminal defendant facing serious charges to be involuntarily medicated." [ 2014 c 10 § 1.]
FindingsIntentSeverabilityEffective date2004 c 157: See notes following RCW 10.77.010.



10.77.093
Involuntary medication—Civil commitment.

When the court must make a determination whether to order involuntary medications for the purpose of competency restoration or for maintenance of competency, the court shall inquire, and shall be told, and to the extent that the prosecutor or defense attorney is aware, whether the defendant is the subject of a pending civil commitment proceeding or has been ordered into involuntary treatment pursuant to a civil commitment proceeding.

NOTES:

FindingsIntentSeverabilityEffective date2004 c 157: See notes following RCW 10.77.010.



10.77.094
Antipsychotic medication, administration.

(1) A state hospital may administer antipsychotic medication without consent to an individual who is committed under this chapter as criminally insane by following the same procedures applicable to the administration of antipsychotic medication without consent to a civilly committed patient under RCW 71.05.217, except for the following:
(a) The maximum period during which the court may authorize the administration of medication without consent under a single involuntary medication petition shall be the time remaining on the individual's current order of commitment or one hundred eighty days, whichever is shorter; and
(b) A petition for involuntary medication may be filed in either the superior court of the county that ordered the commitment or the superior court of the county in which the individual is receiving treatment, provided that a copy of any order that is entered must be provided to the superior court of the county that ordered the commitment following the hearing. The superior court of the county of commitment shall retain exclusive jurisdiction over all hearings concerning the release of the patient.
(2) The state has a compelling interest in providing antipsychotic medication to a patient who has been committed as criminally insane when refusal of antipsychotic medication would result in a likelihood of serious harm or substantial deterioration or substantially prolong the length of involuntary commitment and there is no less intrusive course of treatment than medication that is in the best interest of the patient.

NOTES:

PurposeEffective date2012 c 256: See notes following RCW 10.77.068.



10.77.095
Findings—Developmental disabilities.

The legislature finds that among those persons who endanger the safety of others by committing 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 crimes that involve a threat to public safety or security, 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 crimes that involve a threat to public safety or security 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.

NOTES:

Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.097
Records and reports accompany defendant upon transfer.

A copy of relevant records and reports as defined by the department, in consultation with the department of corrections, made pursuant to this chapter, and including relevant information necessary to meet the requirements of RCW 10.77.065(1) and 10.77.084, shall accompany the defendant upon transfer to a mental health facility or a correctional institution or facility.

NOTES:

Severability2000 c 74: See note following RCW 10.77.060.
Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.100
Experts or professional persons as witnesses.

Subject to the rules of evidence, experts or professional persons who have reported pursuant to this chapter may be called as witnesses at any proceeding held pursuant to this chapter. Both the prosecution and the defendant may summon any other qualified expert or professional persons to testify.



10.77.110
Acquittal of crime.

(1) If a defendant is acquitted of a 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 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 release. If it is found that such 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, 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 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 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.

NOTES:

Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.120
Care and treatment of committed person—Hearings—Release.

(1) The secretary shall provide adequate care and individualized treatment to persons found criminally insane at one or several of the state institutions or facilities under the direction and control of the secretary. In order that the secretary may adequately determine the nature of the mental illness or developmental disability of the person committed as criminally insane, all persons who are committed to the secretary as criminally insane shall be promptly examined by qualified personnel in order to provide a proper evaluation and diagnosis of such individual. The examinations of all 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 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 the person in the custody of one or more department employees to the county 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, the person may be confined in a facility designated by and arranged for by the department, 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 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 and be returned to the institution or facility designated by the secretary until a final decision has been rendered in the cause.



10.77.140
Periodic examinations—Developmentally disabled—Reports—Notice to court.

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. 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.

NOTES:

Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.145
Authorization to leave facility where person is confined prohibited—Exceptions—Approval by secretary—Notification to county or city law enforcement agency.

(1) No person committed to the custody of the department for the determination of competency to stand trial under RCW 10.77.060, the restoration of competency for trial under RCW 10.77.084, 10.77.086, or 10.77.088, or following an acquittal by reason of insanity shall be authorized to leave the facility where the person is confined, except in the following circumstances:
(a) In accordance with conditional release or furlough authorized by a court;
(b) For necessary medical or legal proceedings not available in the facility where the person is confined;
(c) For visits to the bedside of a member of the person's immediate family who is seriously ill; or
(d) For attendance at the funeral of a member of the person's immediate family.
(2) Unless ordered otherwise by a court, no leave under subsection (1) of this section shall be authorized unless the person who is the subject of the authorization is escorted by a person approved by the secretary. During the authorized leave, the person approved by the secretary must be in visual or auditory contact at all times with the person on authorized leave.
(3) Prior to the authorization of any leave under subsection (1) of this section, the secretary must give notification to any county or city law enforcement agency having jurisdiction in the location of the leave destination.



10.77.150
Conditional release—Application—Secretary's recommendation—Order—Procedure.

(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.
(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 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.
(5) Any person, whose application for conditional release has been denied, may reapply after a period of six months from the date of denial.

NOTES:

Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.152
Conditional release—Application—County of origin.

(1) In determining whether to support an application for conditional release on behalf of a person committed as criminally insane which would permit the person to reside outside of a state hospital, the secretary may not support a conditional release application to a location outside the person's county of origin unless it is determined by the secretary that the person's return to his or her county of origin would be inappropriate considering any court-issued protection orders, victim safety concerns, the availability of appropriate treatment, negative influences on the person, or the location of family or other persons or organizations offering support to the person. When the department assists in developing a placement under this section which is outside of the county of origin, and there are two or more options for placement, it shall endeavor to develop the placement in a manner that does not have a disproportionate effect on a single county.
(2) If the committed person is not conditionally released to his or her county of origin, the department shall provide the law and justice council of the county in which the person is conditionally released with a written explanation.
(3) For purposes of this section, the offender's county of origin means the county of the court which ordered the person's commitment.



10.77.155
Conditional release, furlough—Secretary's recommendation.

No court may, without a hearing, enter an order conditionally releasing or authorizing the furlough of a person committed under this chapter, unless the secretary has recommended the release or furlough. If the secretary has not recommended the release or furlough, a hearing shall be held under RCW 10.77.150.



10.77.160
Conditional release—Reports.

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.



10.77.163
Furlough—Notice—Temporary restraining order.

(1) Before a person committed under this chapter is permitted temporarily to leave a treatment facility for any period of time without constant accompaniment by facility staff, the superintendent, professional person in charge of a treatment facility, or his or her professional designee shall in writing notify the prosecuting attorney of any county to which the person is released and the prosecuting attorney of the county in which the criminal charges against the committed person were dismissed, of the decision conditionally to release the person. The notice shall be provided at least forty-five days before the anticipated release and shall describe the conditions under which the release is to occur.
(2) In addition to the notice required by subsection (1) of this section, the superintendent of each state institution designated for the custody, care, and treatment of persons committed under this chapter shall notify appropriate law enforcement agencies through the state patrol communications network of the furloughs of persons committed under RCW 10.77.086 or 10.77.110. Notification shall be made at least thirty days before the furlough, and shall include the name of the person, the place to which the person has permission to go, and the dates and times during which the person will be on furlough.
(3) Upon receiving notice that a person committed under this chapter is being temporarily released under subsection (1) of this section, the prosecuting attorney may seek a temporary restraining order to prevent the release of the person on the grounds that the person is dangerous to self or others.
(4) The notice requirements contained in this section shall not apply to emergency medical furloughs.
(5) The existence of the notice requirements contained in this section shall not require any extension of the release date in the event the release plan changes after notification.
(6) The notice provisions of this section are in addition to those provided in RCW 10.77.205.

NOTES:

FindingsIntent1994 c 129: See note following RCW 4.24.550.
Index, part headings not lawSeverabilityEffective datesApplication1990 c 3: See RCW 18.155.900 through 18.155.902.



10.77.165
Escape or disappearance—Notification requirements.

(1) In the event of an escape by a person committed under this chapter from a state facility or the disappearance of such a person on conditional release or other authorized absence, the superintendent shall provide notification of the person's escape or disappearance for the public's safety or to assist in the apprehension of the person.
(a) The superintendent shall notify:
(i) State and local law enforcement officers located in the city and county where the person escaped and in the city and county which had jurisdiction of the person on the date of the applicable offense;
(ii) Other appropriate governmental agencies; and
(iii) The person's relatives.
(b) The superintendent shall provide the same notification as required by (a) of this subsection to the following, if such notice has been requested in writing about a specific person committed under this chapter:
(i) The victim of the crime for which the person was convicted or the victim's next of kin if the crime was a homicide;
(ii) Any witnesses who testified against the person in any court proceedings if the person was charged with a violent offense; and
(iii) Any other appropriate persons.
(2) Information regarding victims, next of kin, or witnesses requesting the notice, information regarding any other person specified in writing by the prosecuting attorney to receive the notice, and the notice are confidential and shall not be available to the person committed under this chapter.
(3) The notice provisions of this section are in addition to those provided in RCW 10.77.205.

NOTES:

Findings2011 c 305: See note following RCW 74.09.295.
Index, part headings not lawSeverabilityEffective datesApplication1990 c 3: See RCW 18.155.900 through 18.155.902.



10.77.170
Payments to conditionally released persons.

As funds are available, the secretary may provide payment to a person conditionally released pursuant to RCW 10.77.150, consistent with the provisions of RCW 72.02.100 and 72.02.110, and may adopt rules and regulations to do so.



10.77.180
Conditional release—Periodic review of case.

Each person conditionally released pursuant to RCW 10.77.150 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 and 10.77.160, and the opinions of the secretary and other experts or professional persons.

NOTES:

Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.190
Conditional release—Revocation or modification of terms—Procedure.

(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. The court shall be notified of the apprehension before the close of the next judicial day. 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.

NOTES:

Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.195
Conditional release—Court approval—Compliance—Secretary to coordinate with designated treatment providers, department of corrections staff, and local law enforcement—Rules.

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.



10.77.200
Release—Procedure.

(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 person who is the subject of the petition examined by an expert or professional person of the prosecuting attorney's choice. If the secretary is the petitioner, the attorney general shall represent the secretary. If the person who is the subject of the petition is indigent, and the person so requests, the court shall appoint a qualified expert or professional person to examine him or her. If the person who is the subject of the petition 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 person who is the subject of the petition 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. If the person who is the subject of the petition will be transferred to a state correctional institution or facility upon release to serve a sentence for any class A felony, the petitioner must show that the person's mental disease or defect is manageable within a state correctional institution or facility, but must not be required to prove that the person does not present either a substantial danger to other persons, or a substantial likelihood of committing criminal acts jeopardizing public safety or security, if released.
(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 person who is the subject of the petition 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 petition shall be served upon the court, the prosecuting attorney, and the secretary. Upon receipt of such petition, the secretary shall develop a recommendation as provided in subsection (1) of this section and provide the secretary's recommendation to all parties and the court. The issue to be determined on such proceeding is whether the patient, 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.

NOTES:

Findings2013 c 289: See note following RCW 10.77.086.
Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.205
Sexual or violent offenders—Notice of release, escape, etc.—Definitions.

(1)(a) At the earliest possible date, and in no event later than thirty days before conditional release, release, authorized furlough pursuant to RCW 10.77.163, or transfer to a less-restrictive facility than a state mental hospital, the superintendent shall send written notice of the conditional release, release, authorized furlough, or transfer of a person who has been found not guilty of a sex, violent, or felony harassment offense by reason of insanity and who is now in the custody of the department pursuant to this chapter, to the following:
(i) The chief of police of the city, if any, in which the person will reside; and
(ii) The sheriff of the county in which the person will reside.
(b) The same notice as required by (a) of this subsection shall be sent to the following, if such notice has been requested in writing about a specific person committed under this chapter:
(i) The victim of the crime for which the person was committed or the victim's next of kin if the crime was a homicide;
(ii) Any witnesses who testified against the person in any court proceedings; and
(iii) Any person specified in writing by the prosecuting attorney.
Information regarding victims, next of kin, or witnesses requesting the notice, information regarding any other person specified in writing by the prosecuting attorney to receive the notice, and the notice are confidential and shall not be available to the person committed under this chapter.
(c) In addition to the notice requirements of (a) and (b) of this subsection, the superintendent shall comply with RCW 10.77.163.
(d) The thirty-day notice requirement contained in (a) and (b) of this subsection shall not apply to emergency medical furloughs.
(e) The existence of the notice requirements in (a) and (b) of this subsection shall not require any extension of the release date in the event the release plan changes after notification.
(2) If a person who has been found not guilty of a sex, violent, or felony harassment offense by reason of insanity and who is committed under this chapter escapes, the superintendent shall immediately notify, by the most reasonable and expedient means available, the chief of police of the city and the sheriff of the county in which the person resided immediately before the person's arrest. If previously requested, the superintendent shall also notify the witnesses and the victim, if any, of the crime for which the person was committed or the victim's next of kin if the crime was a homicide. The superintendent shall also notify appropriate persons pursuant to RCW 10.77.165. If the person is recaptured, the secretary shall send notice to the persons designated in this subsection as soon as possible but in no event later than two working days after the department learns of such recapture.
(3) If the victim, the victim's next of kin, or any witness is under the age of sixteen, the notice required by this section shall be sent to the parents or legal guardian of the child.
(4) The department shall send the notices required by this chapter to the last address provided to the department by the requesting party. The requesting party shall furnish the department with a current address.
(5) For purposes of this section the following terms have the following meanings:
(a) "Violent offense" means a violent offense under RCW 9.94A.030;
(b) "Sex offense" means a sex offense under RCW 9.94A.030;
(c) "Next of kin" means a person's spouse, state registered domestic partner, parents, siblings, and children;
(d) "Authorized furlough" means a furlough granted after compliance with RCW 10.77.163;
(e) "Felony harassment offense" means a crime of harassment as defined in RCW 9A.46.060 that is a felony.

NOTES:

FindingsIntent1994 c 129: See note following RCW 4.24.550.
Severability1992 c 186: See note following RCW 9A.46.110.
Index, part headings not lawSeverabilityEffective datesApplication1990 c 3: See RCW 18.155.900 through 18.155.902.



10.77.207
Persons acquitted of sex offense due to insanity—Release of information authorized.

In addition to any other information required to be released under this chapter, the department is authorized, pursuant to RCW 4.24.550, to release relevant information necessary to protect the public concerning a person who was acquitted of a sex offense as defined in RCW 9.94A.030 due to insanity and was subsequently committed to the department pursuant to this chapter.

NOTES:

Index, part headings not lawSeverabilityEffective datesApplication1990 c 3: See RCW 18.155.900 through 18.155.902.



10.77.210
Right to adequate care and treatment—Records and reports.

(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.

NOTES:

Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.
Index, part headings not lawSeverabilityEffective datesApplication1990 c 3: See RCW 18.155.900 through 18.155.902.



10.77.2101
Implementation of legislative intent.

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.

NOTES:

Effective datesSeverabilityIntent1998 c 297: See notes following RCW 71.05.010.



10.77.220
Incarceration in correctional institution or facility prohibited—Exceptions.

No person who is criminally insane confined pursuant to this chapter shall be incarcerated in a state correctional institution or facility. This section does not apply to confinement in a mental health facility located wholly within a correctional institution. Confinement of a person who is criminally insane in a county jail or other local facility while awaiting either placement in a treatment program or a court hearing pursuant to this chapter is permitted for no more than seven days.

NOTES:

Finding2015 1st sp.s. c 7: See note following RCW 10.77.075.
Effective dates2015 1st sp.s. c 7: See note following RCW 10.77.073.



10.77.230
Appellate review.

Either party may seek appellate review of the judgment of any hearing held pursuant to the provisions of this chapter.

NOTES:

Rules of court: Cf. RAP 2.2, 18.22.
Severability1988 c 202: See note following RCW 2.24.050.



10.77.240
Existing rights not affected.

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.

NOTES:

PurposeConstruction1999 c 13: See note following RCW 10.77.010.



10.77.250
Responsibility for costs—Reimbursement.

The department shall be responsible for all costs relating to the evaluation and treatment of persons committed to it pursuant to any provisions of this chapter, and the logistical and supportive services pertaining thereto. Reimbursement may be obtained by the department pursuant to RCW 43.20B.330.

NOTES:

Savings1987 c 75: See RCW 43.20B.900.



10.77.260
Violent act—Presumptions.

(1) In determining whether a defendant has committed a violent act the court must:
(a) Presume that a past conviction, guilty plea, or finding of not guilty by reason of insanity establishes the elements necessary for the crime charged;
(b) Consider that the elements of a crime may not be sufficient in themselves to establish that the defendant committed a violent act; and
(c) Presume that the facts underlying the elements, if unrebutted, are sufficient to establish that the defendant committed a violent act.
(2) The presumptions in subsection (1) of this section are rebuttable.
(3) In determining the facts underlying the elements of any crime under subsection (1) of this section, the court may consider information including, but not limited to, the following material relating to the crime:
(a) Affidavits or declarations made under penalty of perjury;
(b) Criminal history record information, as defined in chapter 10.97 RCW; and
(c) Its own or certified copies of another court's records such as criminal complaints, certifications of probable cause to detain, dockets, and orders on judgment and sentencing.

NOTES:

Severability2000 c 74: See note following RCW 10.77.060.



10.77.270
Independent public safety review panel—Members—Secretary to submit recommendation—Access to records—Support, rules—Report.

(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, or persons committed under the involuntary treatment act where the court has made a special finding under RCW 71.05.280(3)(b). The panel shall provide advice regarding all recommendations to the secretary, decisions by the secretary, or actions pending in court: (a) For a change in commitment status; (b) to allow furloughs or temporary leaves accompanied by staff; (c) not to seek further commitment terms under RCW 71.05.320; or (d) 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, or persons committed under the involuntary treatment act where the court has made a special finding under RCW 71.05.280(3)(b). The panel shall have access, upon request, to a committed person's complete hospital record, and any other records deemed necessary by the public safety review panel.
(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) Whether further changes in the law are necessary to enhance public safety when incompetency prevents operation of the criminal justice system and long-term commitment of the criminally insane; and
(d) Any other issues the public safety review panel deems relevant.

NOTES:

Findings2013 c 289: See note following RCW 10.77.086.



10.77.280
Office of forensic mental health services.

(1) In order to prioritize goals of accuracy, prompt service to the court, quality assurance, and integration with other services, an office of forensic mental health services is established within the department of social and health services. The office shall be led by a director on at least the level of deputy assistant secretary within the department who shall, after a reasonable period of transition, have responsibility for the following functions:
(a) Operational control of all forensic evaluation services, including specific budget allocation;
(b) Responsibility for training forensic evaluators;
(c) Development of a system to certify forensic evaluators, and to monitor the quality of forensic evaluation reports;
(d) Liaison with courts, jails, and community mental health programs to ensure proper flow of information, coordinate logistical issues, and solve problems in complex circumstances;
(e) Coordination with state hospitals to identify and develop best practice interventions and curricula for services that are unique to forensic patients;
(f) Promotion of congruence across state hospitals where appropriate, and promotion of interventions that flow smoothly into community interventions;
(g) Coordination with regional support networks, behavioral health organizations, community mental health agencies, and the department of corrections regarding community treatment and monitoring of persons on conditional release;
(h) Oversight of forensic data collection and analysis statewide, and appropriate dissemination of data trends and recommendations; and
(i) Oversight of the development, implementation, and maintenance of community forensic programs and services.
(2) The office of forensic mental health services must have a clearly delineated budget separate from the overall budget for state hospital services.

NOTES:

Finding2015 1st sp.s. c 7: See note following RCW 10.77.075.
Effective dates2015 1st sp.s. c 7: See note following RCW 10.77.073.



10.77.290
Secretary to adopt rules—2015 1st sp.s. c 7.

The secretary shall adopt rules as may be necessary to implement chapter 7, Laws of 2015 1st sp. sess.

NOTES:

Finding2015 1st sp.s. c 7: See note following RCW 10.77.075.
Effective dates2015 1st sp.s. c 7: See note following RCW 10.77.073.



10.77.940
Equal application of 1989 c 420—Evaluation for developmental disability.

The provisions of chapter 420, Laws of 1989 shall apply equally to persons in the custody of the department on May 13, 1989, who were found by a court to be not guilty by reason of insanity or incompetent to stand trial, or who have been found to have committed acts constituting a felony pursuant to RCW 71.05.280(3) and present a substantial likelihood of repeating similar acts, and the secretary shall cause such persons to be evaluated to ascertain if such persons are developmentally disabled for placement in a program specifically reserved for the treatment and training of persons with developmental disabilities.

NOTES:

PurposeConstruction1999 c 13: See note following RCW 10.77.010.



10.77.950
Construction—Chapter applicable to state registered domestic partnerships—2009 c 521.

For the purposes of this chapter, the terms spouse, marriage, marital, husband, wife, widow, widower, next of kin, and family shall be interpreted as applying equally to state registered domestic partnerships or individuals in state registered domestic partnerships as well as to marital relationships and married persons, and references to dissolution of marriage shall apply equally to state registered domestic partnerships that have been terminated, dissolved, or invalidated, to the extent that such interpretation does not conflict with federal law. Where necessary to implement chapter 521, Laws of 2009, gender-specific terms such as husband and wife used in any statute, rule, or other law shall be construed to be gender neutral, and applicable to individuals in state registered domestic partnerships.