General Resources / Legal Resources / Medical
Resources / Briefing Papers / State Activity
Hospital Closures / Preventable
Tragedies / Press Room / Search
Our Site / Home
Last updated November 2003
TITLE 71. MENTAL
ILLNESS
CHAPTER 71.05. MENTAL
ILLNESS
RCW 71.05.010
Legislative intent.
The
provisions of this chapter are intended by the legislature:
(1) To prevent inappropriate, indefinite commitment of
mentally disordered persons and to eliminate legal disabilities that arise from
such commitment;
(2) To provide prompt evaluation and timely and appropriate
treatment of persons with serious mental disorders;
(3) To safeguard individual rights;
(4) To provide continuity of care for persons with serious
mental disorders;
(5) To encourage the full use of all existing agencies,
professional personnel, and public funds to prevent duplication of services and
unnecessary expenditures;
(6) To encourage, whenever appropriate, that services be provided
within the community;
(7) To protect the public safety.
RCW 71.05.012
Legislative intent and finding.
It is the
intent of the legislature to enhance continuity of care for persons with serious
mental disorders that can be controlled or stabilized in a less restrictive
alternative commitment. Within the guidelines stated in In Re LaBelle 107 Wn. 2d 196 (1986), the legislature intends to encourage
appropriate interventions at a point when there is the best opportunity to
restore the person to or maintain satisfactory functioning.
For persons with a prior history or pattern of repeated hospitalizations or law
enforcement interventions due to decompensation, the consideration of prior mental
history is particularly relevant in determining whether the person would
receive, if released, such care as is essential for his or her health or
safety.
Therefore, the legislature finds that for persons who are currently under a
commitment order, a prior history of decompensation leading to repeated
hospitalizations or law enforcement interventions should be given great weight
in determining whether a new less restrictive alternative commitment should be
ordered.
RCW 71.05.020
Definitions.
The definitions
in this section apply throughout this chapter unless the context clearly
requires otherwise.
(1) "Admission" or "admit" means a
decision by a physician that a person should be examined or treated as a
patient in a hospital;
(2) "Antipsychotic medications"
means that class of drugs primarily used to treat serious manifestations of
mental illness associated with thought disorders, which includes, but is not
limited to atypical antipsychotic medications;
(3) "Attending staff" means any person on the
staff of a public or private agency having responsibility for the care and
treatment of a patient;
(4) "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;
(5) "Conditional release" means a revocable
modification of a commitment, which may be revoked upon violation of any of its
terms;
(6) "County designated mental health professional"
means a mental health professional appointed by the county to perform the
duties specified in this chapter;
(7) "Custody" means involuntary detention under
the provisions of this chapter or chapter 10.77 RCW, uninterrupted by any
period of unconditional release from commitment from a facility providing
involuntary care and treatment;
(8) "Department" means the department of social
and health services;
(9) "Detention" or "detain" means the
lawful confinement of a person, under the provisions of this chapter;
(10) "Developmental disabilities professional"
means a person who has specialized training and three years of experience in
directly treating or working with persons with developmental disabilities and
is a psychiatrist, psychologist, or social worker, and such other developmental
disabilities professionals as may be defined by rules adopted by the secretary;
(11) "Developmental disability" means that
condition defined in RCW 71A.10.020(3);
(12) "Discharge" means the termination of hospital
medical authority. The commitment may remain in place, be terminated, or be
amended by court order;
(13) "Evaluation and treatment facility" means any
facility which can provide directly, or by direct arrangement with other public
or private agencies, emergency evaluation and treatment, outpatient care, and
timely and appropriate inpatient care to persons suffering from a mental
disorder, and which is certified as such by the department. A physically
separate and separately operated portion of a state hospital may be designated
as an evaluation and treatment facility. A facility which is part of, or
operated by, the department or any federal agency will not require
certification. No correctional institution or facility, or jail, shall be an
evaluation and treatment facility within the meaning of this chapter;
(14) "Gravely disabled" means a condition in which
a person, as a result of a mental disorder: (a) Is in danger of serious
physical harm resulting from a failure to provide for his or her essential
human needs of health or safety; or (b) manifests severe deterioration in
routine functioning evidenced by repeated and escalating loss of cognitive or
volitional control over his or her actions and is not receiving such care as is
essential for his or her health or safety;
(15) "Habilitative
services" means those services provided by program personnel to assist
persons in acquiring and maintaining life skills and in raising their levels of
physical, mental, social, and vocational functioning. Habilitative
services include education, training for employment, and therapy. The habilitative process shall be undertaken with recognition
of the risk to the public safety presented by the individual being assisted as
manifested by prior charged criminal conduct;
(16) "History of one or more violent acts" refers
to the period of time ten years prior to the filing of a petition under this
chapter, excluding any time spent, but not any violent acts committed, in a
mental health facility or in confinement as a result of a criminal conviction;
(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 discharge or release,
and a projected possible date for discharge or release; and
(g) The type of residence immediately anticipated for the
person and possible future types of residences;
(18) "Judicial commitment" means a commitment by a
court pursuant to the provisions of this chapter;
(19) "Likelihood of serious harm" means:
(a) A substantial risk that: (i)
Physical harm will be inflicted by an individual upon his or her own person, as
evidenced by threats or attempts to commit suicide or inflict physical harm on
oneself; (ii) physical harm will be inflicted by an individual upon another, as
evidenced by behavior which has caused such harm or which places another person
or persons in reasonable fear of sustaining such harm; or (iii) physical harm
will be inflicted by an individual upon the property of others, as evidenced by
behavior which has caused substantial loss or damage to the property of others;
or
(b) The individual has threatened the physical safety of
another and has a history of one or more violent acts;
(20) "Mental disorder" means any organic, mental,
or emotional impairment which has substantial adverse effects on an
individual's cognitive or volitional functions;
(21) "Mental health professional" means a
psychiatrist, psychologist, psychiatric nurse, or social worker, and such other
mental health professionals as may be defined by rules adopted by the secretary
pursuant to the provisions of this chapter;
(22) "Peace officer" means a law enforcement
official of a public agency or governmental unit, and includes persons
specifically given peace officer powers by any state law, local ordinance, or
judicial order of appointment;
(23) "Private agency" means any person,
partnership, corporation, or association that is not a public agency, whether
or not financed in whole or in part by public funds, which constitutes an
evaluation and treatment facility or private institution, hospital, or
sanitarium, which is conducted for, or includes a department or ward conducted
for, the care and treatment of persons who are mentally ill;
(24) "Professional person" means a mental health
professional and shall also mean a physician, registered nurse, and such others
as may be defined by rules adopted by the secretary pursuant to the provisions
of this chapter;
(25) "Psychiatrist" means a person having a
license as a physician and surgeon in this state who has in addition completed
three years of graduate training in psychiatry in a program approved by the
American medical association or the American osteopathic association and is
certified or eligible to be certified by the American board of psychiatry and
neurology;
(26) "Psychologist" means a person who has been
licensed as a psychologist pursuant to chapter 18.83 RCW;
(27) "Public agency" means any evaluation and
treatment facility or institution, hospital, or sanitarium which is conducted
for, or includes a department or ward conducted for, the care and treatment of
persons who are mentally ill;[,] if the agency is operated directly by,
federal, state, county, or municipal government, or a combination of such
governments;
(28) "Release" means legal termination of the
commitment under the provisions of this chapter;
(29) "Resource management services" has the
meaning given in chapter 71.24 RCW;
(30) "Secretary" means the secretary of the
department of social and health services, or his or her designee;
(31) "Social worker" means a person with a
master's or further advanced degree from an accredited school of social work or
a degree deemed equivalent under rules adopted by the secretary;
(32) "Violent act" means behavior that resulted in
homicide, attempted suicide, nonfatal injuries, or substantial damage to
property.
RCW 71.05.025
Integration with chapter 71.24 RCW -- Regional support networks.
The
legislature intends that the procedures and services authorized in this chapter
be integrated with those in chapter 71.24 RCW to the maximum extent necessary
to assure a continuum of care to persons who are mentally ill or who have
mental disorders, as defined in either or both this chapter and chapter 71.24
RCW. To this end, regional support networks established in accordance with
chapter 71.24 RCW shall institute procedures which require timely consultation
with resource management services by county-designated mental health
professionals and evaluation and treatment facilities to assure that
determinations to admit, detain, commit, treat, discharge, or release persons
with mental disorders under this chapter are made only after appropriate
information regarding such person's treatment history and current treatment
plan has been sought from resource management services.
RCW 71.05.030
Commitment laws applicable.
Persons
suffering from a mental disorder may not be involuntarily committed for
treatment of such disorder except pursuant to provisions of this chapter,
chapter 10.77 RCW, chapter 71.06 RCW, chapter 71.34 RCW, transfer
pursuant to RCW 72.68.031 through 72.68.037, or pursuant to court ordered
evaluation and treatment not to exceed ninety days pending a criminal trial or
sentencing.
RCW 71.05.035
Findings -- Developmentally disabled.
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.
RCW 71.05.040
Detention or judicial commitment of persons who are developmentally disabled,
impaired by chronic alcoholism or drug abuse, or suffering from dementia.
Persons who
are developmentally disabled, impaired by chronic alcoholism or drug abuse, or
suffering from dementia shall not be detained for evaluation and treatment or
judicially committed solely by reason of that condition unless such condition
causes a person to be gravely disabled or as a result of a mental disorder such
condition exists that constitutes a likelihood of serious harm.
RCW 71.05.050
Voluntary application for mental health services -- Rights -- Review of
condition and status -- Detention -- Person refusing voluntary admission,
temporary detention.
Nothing in
this chapter shall be construed to limit the right of any person to apply
voluntarily to any public or private agency or practitioner for treatment of a
mental disorder, either by direct application or by referral. Any person
voluntarily admitted for inpatient treatment to any public or private agency
shall be released immediately upon his or her request. Any person voluntarily
admitted for inpatient treatment to any public or private agency shall orally be
advised of the right to immediate discharge, and further advised of such rights
in writing as are secured to them pursuant to this chapter and their rights of
access to attorneys, courts, and other legal redress. Their condition and
status shall be reviewed at least once each one hundred eighty days for
evaluation as to the need for further treatment or possible discharge, at which
time they shall again be advised of their right to discharge upon request:
PROVIDED HOWEVER, That if the professional staff of any public or private
agency or hospital regards a person voluntarily admitted who requests discharge
as presenting, as a result of a mental disorder, an imminent likelihood of
serious harm, or is gravely disabled, they may detain such person for sufficient
time to notify the county designated mental health professional of such
person's condition to enable the county designated mental health professional
to authorize such person being further held in custody or transported to an
evaluation and treatment center pursuant to the provisions of this chapter,
which shall in ordinary circumstances be no later than the next judicial day:
PROVIDED FURTHER, That if a person is brought to the emergency room of a public
or private agency or hospital for observation or treatment, the person refuses
voluntary admission, and the professional staff of the public or private agency
or hospital regard such person as presenting as a result of a mental disorder
an imminent likelihood of serious harm, or as presenting an imminent danger
because of grave disability, they may detain such person for sufficient time to
notify the county designated mental health professional of such person's
condition to enable the county designated mental health professional to
authorize such person being further held in custody or transported to an
evaluation treatment center pursuant to the conditions in this chapter, but
which time shall be no more than six hours from the time the professional staff
determine that an evaluation by the county designated mental health
professional is necessary.
RCW 71.05.060
Rights of persons complained against.
A person
subject to confinement resulting from any petition or proceeding pursuant to
the provisions of this chapter shall not forfeit any legal right or suffer any
legal disability as a consequence of any actions taken or orders made, other
than as specifically provided in this chapter.
RCW 71.05.070
Prayer treatment.
The
provisions of this chapter shall not be construed to deny to any person
treatment by spiritual means through prayer in accordance with the tenets and
practices of a church or religious denomination.
RCW 71.05.090
Choice of physicians.
Persons
receiving evaluation or treatment under this chapter shall be given a
reasonable choice of an available physician or other professional person
qualified to provide such services.
RCW 71.05.100
Financial responsibility.
In addition
to the responsibility provided for by RCW 43.20B.330, any person, or his or her
estate, or his or her spouse, or the parents of a minor person who is
involuntarily detained pursuant to this chapter for the purpose of treatment
and evaluation outside of a facility maintained and operated by the department
shall be responsible for the cost of such care and treatment. In the event that
an individual is unable to pay for such treatment or in the event payment would
result in a substantial hardship upon the individual or his or her family, then
the county of residence of such person shall be responsible for such costs. If
it is not possible to determine the county of residence of the person, the cost
shall be borne by the county where the person was originally detained. The
department shall, pursuant to chapter 34.05 RCW, adopt standards as to (1)
inability to pay in whole or in part, (2) a definition of substantial hardship,
and (3) appropriate payment schedules. Such standards shall be applicable to
all county mental health administrative boards. Financial responsibility with
respect to department services and facilities shall continue to be as provided
in RCW 43.20B.320 through 43.20B.360 and 43.20B.370.
RCW 71.05.110
Compensation of appointed counsel.
Attorneys
appointed for persons pursuant to this chapter shall be compensated for their
services as follows: (1) The person for whom an attorney is appointed shall, if
he or she is financially able pursuant to standards as to financial capability
and indigency set by the superior court of the county
in which the proceeding is held, bear the costs of such legal services; (2) if
such person is indigent pursuant to such standards, the costs of such services
shall be borne by the county in which the proceeding is held, subject however
to the responsibility for costs provided in RCW 71.05.320(2).
RCW 71.05.120
Exemptions from liability.
(1) No
officer of a public or private agency, nor the superintendent, professional
person in charge, his or her professional designee, or attending staff of any
such agency, nor any public official performing functions necessary to the
administration of this chapter, nor peace officer responsible for detaining a
person pursuant to this chapter, nor any county designated mental health
professional, nor the state, a unit of local government, or an evaluation and
treatment facility shall be civilly or criminally liable for performing duties
pursuant to this chapter with regard to the decision of whether to admit,
discharge, release, administer antipsychotic
medications, or detain a person for evaluation and treatment: PROVIDED, That
such duties were performed in good faith and without gross negligence.
(2) This
section does not relieve a person from giving the required notices under RCW
71.05.330(2) or 71.05.340(1)(b), or the duty to warn
or to take reasonable precautions to provide protection from violent behavior
where the patient has communicated an actual threat of physical violence
against a reasonably identifiable victim or victims. The duty to warn or to
take reasonable precautions to provide protection from violent behavior is
discharged if reasonable efforts are made to communicate the threat to the
victim or victims and to law enforcement personnel.
RCW 71.05.130
Duties of prosecuting attorney and attorney general.
In any
judicial proceeding for involuntary commitment or detention, or in any proceeding
challenging such commitment or detention, the prosecuting attorney for the
county in which the proceeding was initiated shall represent the individuals or
agencies petitioning for commitment or detention and shall defend all
challenges to such commitment or detention: PROVIDED, That the attorney general
shall represent and provide legal services and advice to state hospitals or
institutions with regard to all provisions of and proceedings under this
chapter except in proceedings initiated by such hospitals and institutions
seeking fourteen day detention.
RCW 71.05.135
Mental health commissioners -- Appointment.
In each
county the superior court may appoint the following persons to assist the
superior court in disposing of its business: PROVIDED,
That such positions may not be created without prior consent of the county
legislative authority:
(1) One or more attorneys to act as mental health
commissioners; and
(2) Such investigators, stenographers, and clerks as the
court shall find necessary to carry on the work of the mental health
commissioners.
The appointments provided for in this section shall be made by a majority vote
of the judges of the superior court of the county and may be in addition to all
other appointments of commissioners and other judicial attaches otherwise
authorized by law. Mental health commissioners and investigators shall serve at
the pleasure of the judges appointing them and shall receive such compensation
as the county legislative authority shall determine. The appointments may be
full or part-time positions. A person appointed as a mental health commissioner
may also be appointed to any other commissioner position authorized by law.
RCW 71.05.137
Mental health commissioners -- Authority.
The judges
of the superior court of the county by majority vote may authorize mental
health commissioners, appointed pursuant to RCW 71.05.135, to perform any or
all of the following duties:
(1) Receive all applications, petitions, and proceedings
filed in the superior court for the purpose of disposing of them pursuant to
this chapter;
(2) Investigate the facts upon which to base warrants,
subpoenas, orders to directions in actions, or proceedings filed pursuant to
this chapter;
(3) For the purpose of this chapter, exercise all powers and
perform all the duties of a court commissioner appointed pursuant to RCW
2.24.010;
(4) Hold hearings in proceedings under this chapter and make
written reports of all proceedings under this chapter which shall become a part
of the record of superior court;
(5) Provide such supervision in connection with the exercise
of its jurisdiction as may be ordered by the presiding judge; and
(6) Cause the orders and findings to be entered in the same
manner as orders and findings are entered in cases in the superior court.
RCW 71.05.140
Records maintained.
A record of
all applications, petitions, and proceedings under this chapter shall be
maintained by the county clerk in which the
application, petition, or proceeding was initiated.
RCW 71.05.145
Dangerous mentally ill offenders -- Less restrictive alternative.
The
legislature intends that, when evaluating a person who is identified under RCW
72.09.370(7), the professional person at the evaluation and treatment facility
shall, when appropriate after consideration of the person's mental condition
and relevant public safety concerns, file a petition for a ninety-day less
restrictive alternative in lieu of a petition for a fourteen-day commitment.
RCW 71.05.150
Detention of mentally disordered persons for evaluation and treatment --
Procedure.
(1)
(a) When a county designated mental health professional
receives information alleging that a person, as a result of a mental disorder:
(i) Presents a likelihood of serious harm; or (ii) is
gravely disabled; the county designated mental health professional may, after
investigation and evaluation of the specific facts alleged and of the
reliability and credibility of any person providing information to initiate
detention, if satisfied that the allegations are true and that the person will
not voluntarily seek appropriate treatment, file a petition for initial
detention. Before filing the petition, the county designated mental health
professional must personally interview the person, unless the person refuses an
interview, and determine whether the person will voluntarily receive
appropriate evaluation and treatment at an evaluation and treatment facility.
(b) Whenever it appears, by petition for initial detention,
to the satisfaction of a judge of the superior court that a person presents, as
a result of a mental disorder, a likelihood of serious harm, or is gravely
disabled, and that the person has refused or failed to accept appropriate
evaluation and treatment voluntarily, the judge may issue an order requiring
the person to appear within twenty-four hours after service of the order at a
designated evaluation and treatment facility for not more than a seventy-two
hour evaluation and treatment period. The order shall state the address of the
evaluation and treatment facility to which the person is to report and whether
the required seventy-two hour evaluation and treatment services may be
delivered on an outpatient or inpatient basis and that if the person named in
the order fails to appear at the evaluation and treatment facility at or before
the date and time stated in the order, such person may be involuntarily taken
into custody for evaluation and treatment. The order shall also designate
retained counsel or, if counsel is appointed from a list provided by the court,
the name, business address, and telephone number of the attorney appointed to
represent the person.
(c) The county designated mental health professional shall
then serve or cause to be served on such person, his or her guardian, and
conservator, if any, a copy of the order to appear together with a notice of
rights and a petition for initial detention. After service on such person the
county designated mental health professional shall file the return of service
in court and provide copies of all papers in the court file to the evaluation
and treatment facility and the designated attorney. The county designated
mental health professional shall notify the court and the prosecuting attorney
that a probable cause hearing will be held within seventy-two hours of the date
and time of outpatient evaluation or admission to the evaluation and treatment
facility. The person shall be permitted to remain in his or her home or other
place of his or her choosing prior to the time of evaluation and shall be
permitted to be accompanied by one or more of his or her relatives, friends, an
attorney, a personal physician, or other professional or religious advisor to
the place of evaluation. An attorney accompanying the person to the place of
evaluation shall be permitted to be present during the admission evaluation.
Any other individual accompanying the person may be present during the
admission evaluation. The facility may exclude the individual if his or her
presence would present a safety risk, delay the proceedings, or otherwise interfere
with the evaluation.
(d) If the person ordered to appear does appear on or before
the date and time specified, the evaluation and treatment facility may admit
such person as required by RCW 71.05.170 or may provide treatment on an
outpatient basis. If the person ordered to appear fails to appear on or before
the date and time specified, the evaluation and treatment facility shall
immediately notify the county designated mental health professional who may
notify a peace officer to take such person or cause such person to be taken
into custody and placed in an evaluation and treatment facility. Should the
county designated mental health professional notify a peace officer authorizing
him or her to take a person into custody under the provisions of this
subsection, he or she shall file with the court a copy of such authorization
and a notice of detention. At the time such person is taken into custody there
shall commence to be served on such person, his or her guardian, and
conservator, if any, a copy of the original order together with a notice of
detention, a notice of rights, and a petition for initial detention.
(2) When a
county designated mental health professional receives information alleging that
a person, as the result of a mental disorder, presents an imminent likelihood
of serious harm, or is in imminent danger because of being gravely disabled,
after investigation and evaluation of the specific facts alleged and of the
reliability and credibility of the person or persons providing the information
if any, the county designated mental health professional may take such person,
or cause by oral or written order such person to be taken into emergency
custody in an evaluation and treatment facility for not more than seventy-two
hours as described in RCW 71.05.180.
(3) A peace
officer may take such person or cause such person to be taken into custody and
placed in an evaluation and treatment facility pursuant to subsection (1)(d) of
this section.
(4) A peace
officer may, without prior notice of the proceedings provided for in subsection
(1) of this section, take or cause such person to be taken into custody and
immediately delivered to an evaluation and treatment facility or the emergency
department of a local hospital:
(a) Only pursuant to subsections (1)(d)
and (2) of this section; or
(b) When he or she has reasonable cause to believe that such
person is suffering from a mental disorder and presents an imminent likelihood
of serious harm or is in imminent danger because of being gravely disabled.
(5) Persons
delivered to evaluation and treatment facilities by peace officers pursuant to
subsection (4)(b) of this section may be held by the facility for a period of
up to twelve hours: PROVIDED, That they are examined by a mental health
professional within three hours of their arrival. Within twelve hours of their
arrival, the county designated mental health professional must file a
supplemental petition for detention, and commence service on the designated
attorney for the detained person.
RCW 71.05.155
Request to mental health professional by law enforcement agency for
investigation under RCW 71.05.150
-- Advisory report of results.
When a
mental health professional is requested by a representative of a law enforcement
agency, including a police officer, sheriff, a municipal attorney, or
prosecuting attorney to undertake an investigation under RCW 71.05.150, the
mental health professional shall, if requested to do so, advise the
representative in writing of the results of the investigation including a
statement of reasons for the decision to detain or release the person
investigated. Such written report shall be submitted within seventy-two hours
of the completion of the investigation or the request from the law enforcement
representative, whichever occurs later.
RCW 71.05.160
Petition for initial detention.
Any
facility receiving a person pursuant to RCW 71.05.150 shall require a petition
for initial detention stating the circumstances under which the person's condition
was made known and stating that such officer or person has evidence, as a
result of his or her personal observation or investigation, that the actions of
the person for which application is made constitute a likelihood of serious
harm, or that he or she is gravely disabled, and stating the specific facts
known to him or her as a result of his or her personal observation or
investigation, upon which he or she bases the belief that such person should be
detained for the purposes and under the authority of this chapter.
If a person is involuntarily placed in an evaluation and treatment facility
pursuant to RCW 71.05.150, on the next judicial day following the initial
detention, the county designated mental health professional shall file with the
court and serve the designated attorney of the detained person the petition or
supplemental petition for initial detention, proof of service of notice, and a
copy of a notice of emergency detention.
RCW 71.05.170
Acceptance of petition -- Notice -- Duty of state hospital.
Whenever
the county designated mental health professional petitions for detention of a
person whose actions constitute a likelihood of serious harm, or who is gravely
disabled, the facility providing seventy-two hour evaluation and treatment must
immediately accept on a provisional basis the petition and the person. The
facility shall then evaluate the person's condition and admit, detain,
transfer, or discharge such person in accordance with RCW 71.05.210. The
facility shall notify in writing the court and the county designated mental
health professional of the date and time of the initial detention of each
person involuntarily detained in order that a probable cause hearing shall be
held no later than seventy-two hours after detention.
The duty of a state hospital to accept persons for evaluation and treatment
under this section shall be limited by chapter 71.24 RCW.
RCW 71.05.180
Detention period for evaluation and treatment.
If the
evaluation and treatment facility admits the person, it may detain him or her
for evaluation and treatment for a period not to exceed seventy-two hours from
the time of acceptance as set forth in RCW 71.05.170. The computation of such
seventy-two hour period shall exclude Saturdays, Sundays and holidays.
RCW 71.05.190
Persons not admitted -- Transportation -- Detention of arrested person pending
return to custody.
If the
person is not approved for admission by a facility providing seventy-two hour
evaluation and treatment, and the individual has not been arrested, the
facility shall furnish transportation, if not otherwise available, for the
person to his or her place of residence or other appropriate place. If the
individual has been arrested, the evaluation and treatment facility shall
detain the individual for not more than eight hours at the request of the peace
officer in order to enable a peace officer to return to the facility and take
the individual back into custody.
RCW 71.05.200
Notice and statement of rights -- Probable cause hearing.
(1) Whenever
any person is detained for evaluation and treatment pursuant to this chapter,
both the person and, if possible, a responsible member of his or her immediate
family, guardian, or conservator, if any, shall be advised as soon as possible
in writing or orally, by the officer or person taking him or her into custody
or by personnel of the evaluation and treatment facility where the person is
detained that unless the person is released or voluntarily admits himself or
herself for treatment within seventy-two hours of the initial detention:
(a) That a judicial hearing in a superior court, either by a
judge or court commissioner thereof, shall be held not more than seventy-two
hours after the initial detention to determine whether there is probable cause
to detain the person after the seventy-two hours have expired for up to an
additional fourteen days without further automatic hearing for the reason that
the person is a mentally ill person whose mental disorder presents a likelihood
of serious harm or that the person is gravely disabled;
(b) That the person has a right to communicate immediately
with an attorney; has a right to have an attorney appointed to represent him or
her before and at the probable cause hearing if he or she is indigent; and has
the right to be told the name and address of the attorney the mental health
professional has designated pursuant to this chapter;
(c) That the person has the right to remain silent and that
any statement he or she makes may be used against him or her;
(d) That the person has the right to present evidence and to
cross-examine witnesses who testify against him or her at the probable cause
hearing; and
(e) That the person has the right to refuse psychiatric
medications, including antipsychotic medication beginning
twenty-four hours prior to the probable cause hearing.
(2) When
proceedings are initiated under RCW 71.05.150 (2), (3), or (4)(b), no later
than twelve hours after such person is admitted to the evaluation and treatment
facility the personnel of the evaluation and treatment facility or the county
designated mental health professional shall serve on such person a copy of the
petition for initial detention and the name, business address, and phone number
of the designated attorney and shall forthwith commence service of a copy of
the petition for initial detention on the designated attorney.
(3) The
judicial hearing described in subsection (1) of this section is hereby
authorized, and shall be held according to the provisions of subsection (1) of
this section and rules promulgated by the supreme court.
RCW 71.05.210
Evaluation -- Treatment and care -- Release or other disposition.
Each person
involuntarily detained and accepted or admitted at an evaluation and treatment
facility shall, within twenty-four hours of his or her admission or acceptance
at the facility, be examined and evaluated by a licensed physician who may be
assisted by a physician assistant according to chapter 18.71A RCW or an
advanced registered nurse practitioner according to chapter 18.79 RCW and a
mental health professional, and shall receive such treatment and care as his or
her condition requires including treatment on an outpatient basis for the
period that he or she is detained, except that, beginning twenty-four hours
prior to a trial or hearing pursuant to RCW 71.05.215, 71.05.240, 71.05.310,
71.05.320, 71.05.340, or 71.05.370, the individual may refuse psychiatric
medications, but may not refuse: (1) Any other medication previously prescribed
by a person licensed under Title 18 RCW; or (2) emergency lifesaving treatment,
and the individual shall be informed at an appropriate time of his or her right
of such refusal. The person shall be detained up to seventy-two hours, if, in
the opinion of the professional person in charge of the facility, or his or her
professional designee, the person presents a likelihood of serious harm, or is
gravely disabled. A person who has been detained for seventy-two hours shall no
later than the end of such period be released, unless referred for further care
on a voluntary basis, or detained pursuant to court order for further treatment
as provided in this chapter.
If, after examination and evaluation, the licensed physician and mental health
professional determine that the initial needs of the person would be better
served by placement in a chemical dependency treatment facility, then the
person shall be referred to an approved treatment program defined under RCW
70.96A.020.
An evaluation and treatment center admitting or accepting any person pursuant
to this chapter whose physical condition reveals the need for hospitalization
shall assure that such person is transferred to an appropriate hospital for
evaluation or admission for treatment. Notice of such fact shall be given to
the court, the designated attorney, and the county designated mental health
professional and the court shall order such continuance in proceedings under
this chapter as may be necessary, but in no event may this continuance be more
than fourteen days.
RCW 71.05.212
Evaluation -- Consideration of information and records.
Whenever a
county designated mental health professional or professional person is
conducting an evaluation under this chapter, consideration shall include all
reasonably available information and records regarding:
(1) Prior recommendations for evaluation of the need for
civil commitments when the recommendation is made pursuant to an evaluation
conducted under chapter 10.77 RCW;
(2) history of one or more violent acts;
(3) prior determinations of incompetency or insanity under
chapter 10.77 RCW; and
(4) prior commitments under this chapter.
In addition, when conducting an evaluation for offenders identified under RCW
72.09.370, the county designated mental health professional or professional
person shall consider an offender's history of judicially required or
administratively ordered antipsychotic medication
while in confinement.
RCW 71.05.214
Protocols -- Development -- Submission to governor and legislature.
The
department shall develop statewide protocols to be utilized by professional
persons and county designated mental health professionals in administration of
this chapter and chapter 10.77 RCW. The protocols shall be updated at least
every three years. The protocols shall provide uniform development and
application of criteria in evaluation and commitment recommendations, of
persons who have, or are alleged to have, mental disorders and are subject to
this chapter.
The initial protocols shall be developed not later than
RCW 71.05.215
Right to refuse antipsychotic medicine -- Rules.
(1) A
person found to be gravely disabled or presents a likelihood of serious harm as
a result of a mental disorder has a right to refuse antipsychotic
medication unless it is determined that the failure to medicate may 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 in the best interest of that person.
(2) The
department shall adopt rules to carry out the purposes of this chapter. These
rules shall include:
(a) An attempt to obtain the informed consent of the person
prior to administration of antipsychotic medication.
(b) For short-term treatment up to thirty days, the right to
refuse antipsychotic medications unless there is an
additional concurring medical opinion approving medication.
(c) For continued treatment beyond thirty days through the
hearing on any petition filed under RCW 71.05.370(7), the right to periodic
review of the decision to medicate by the medical director or designee.
(d) Administration of antipsychotic
medication in an emergency and review of this decision within twenty-four
hours. An emergency exists if the person presents an imminent likelihood of
serious harm, and medically acceptable alternatives to administration of antipsychotic medications are not available or are unlikely
to be successful; and in the opinion of the physician, the person's condition
constitutes an emergency requiring the treatment be instituted prior to
obtaining a second medical opinion.
(e) Documentation in the medical record of the physician's
attempt to obtain informed consent and the reasons why antipsychotic
medication is being administered over the person's objection or lack of
consent.
RCW 71.05.220
Property of committed person.
At the time
a person is involuntarily admitted to an evaluation and treatment facility, the
professional person in charge or his or her designee shall take reasonable
precautions to inventory and safeguard the personal property of the person
detained. A copy of the inventory, signed by the staff member making it, shall
be given to the person detained and shall, in addition, be open to inspection
to any responsible relative, subject to limitations, if any, specifically
imposed by the detained person. For purposes of this section, "responsible
relative" includes the guardian, conservator, attorney, spouse, parent,
adult child, or adult brother or sister of the person. The facility shall not
disclose the contents of the inventory to any other person without the consent
of the patient or order of the court.
RCW 71.05.230
Procedures for additional treatment.
A person
detained for seventy-two hour evaluation and treatment may be detained for not
more than fourteen additional days of involuntary intensive treatment or ninety
additional days of a less restrictive alternative to involuntary intensive
treatment if the following conditions are met:
(1) The professional staff of the agency or facility
providing evaluation services has analyzed the person's condition and finds
that the condition is caused by mental disorder and either results in a
likelihood of serious harm, or results in the detained person being gravely
disabled and are prepared to testify those conditions are met; and
(2) The person has been advised of the need for voluntary
treatment and the professional staff of the facility has evidence that he or
she has not in good faith volunteered; and
(3) The facility providing intensive treatment is certified
to provide such treatment by the department; and
(4) The professional staff of the agency or facility or the
county designated mental health professional has filed a petition for fourteen
day involuntary detention or a ninety day less restrictive alternative with the
court. The petition must be signed either by two physicians or by one physician
and a mental health professional who have examined the person. If involuntary
detention is sought the petition shall state facts that support the finding
that such person, as a result of mental disorder, presents a likelihood of
serious harm, or is gravely disabled and that there are no less restrictive
alternatives to detention in the best interest of such person or others. The
petition shall state specifically that less restrictive alternative treatment
was considered and specify why treatment less restrictive than detention is not
appropriate. If an involuntary less restrictive alternative is sought, the
petition shall state facts that support the finding that such person, as a
result of mental disorder, presents a likelihood of serious harm, or is gravely
disabled and shall set forth the less restrictive alternative proposed by the
facility; and
(5) A copy of the petition has been served on the detained
person, his or her attorney and his or her guardian or conservator, if any,
prior to the probable cause hearing; and
(6) The court at the time the petition was filed and before
the probable cause hearing has appointed counsel to represent such person if no
other counsel has appeared; and
(7) The court has ordered a fourteen day involuntary
intensive treatment or a ninety day less restrictive alternative treatment
after a probable cause hearing has been held pursuant to RCW 71.05.240; and
(8) At the conclusion of the initial commitment period, the
professional staff of the agency or facility or the county designated mental
health professional may petition for an additional period of either ninety days
of less restrictive alternative treatment or ninety days of involuntary
intensive treatment as provided in RCW 71.05.290; and
(9) If the hospital or facility designated to provide
outpatient treatment is other than the facility providing involuntary
treatment, the outpatient facility so designated has agreed to assume such
responsibility.
RCW 71.05.235
Examination, evaluation of criminal defendant -- Hearing.
(1) If an
individual is referred to a county designated mental health professional under
RCW 10.77.090(1)(d)(iii)(A), the county designated
mental health professional shall examine the individual within forty-eight
hours. If the county designated mental health professional determines it is not
appropriate to detain the individual or petition for a ninety-day less
restrictive alternative under RCW 71.05.230(4), that decision shall be
immediately presented to the superior court for hearing. The court shall hold a
hearing to consider the decision of the county designated mental health
professional not later than the next judicial day. At the hearing the superior
court shall review the determination of the county designated mental health
professional and determine whether an order should be entered requiring the
person to be evaluated at an evaluation and treatment facility. No person
referred to an evaluation and treatment facility may be held at the facility
longer than seventy-two hours.
(2) If an
individual is placed in an evaluation and treatment facility under RCW
10.77.090(1)(d)(iii)(B), a professional person shall
evaluate the individual for purposes of determining whether to file a
ninety-day inpatient or outpatient petition under chapter 71.05 RCW. Before
expiration of the seventy-two hour evaluation period authorized under RCW
10.77.090(1)(d)(iii)(B), the professional person shall file a petition or, if
the recommendation of the professional person is to release the individual,
present his or her recommendation to the superior court of the county in which
the criminal charge was dismissed. The superior court shall review the
recommendation not later than forty-eight hours, excluding Saturdays, Sundays,
and holidays, after the recommendation is presented. If the court rejects the
recommendation to unconditionally release the individual, the court may order
the individual detained at a designated evaluation and treatment facility for
not more than a seventy-two hour evaluation and treatment period and direct the
individual to appear at a surety hearing before that court within seventy-two
hours, or the court may release the individual but direct the individual to
appear at a surety hearing set before that court within eleven days, at which
time the prosecutor may file a petition under this chapter for ninety-day
inpatient or outpatient treatment. If a petition is filed by the prosecutor,
the court may order that the person named in the petition be detained at the
evaluation and treatment facility that performed the evaluation under this
subsection or order the respondent to be in outpatient treatment. If a petition
is filed but the individual fails to appear in court for the surety hearing,
the court shall order that a mental health professional or peace officer shall
take such person or cause such person to be taken into custody and placed in an
evaluation and treatment facility to be brought before the court the next
judicial day after detention. Upon the individual's first appearance in court
after a petition has been filed, proceedings under RCW 71.05.310 and 71.05.320
shall commence. For an individual subject to this subsection, the prosecutor or
professional person may directly file a petition for ninety-day inpatient or
outpatient treatment and no petition for initial detention or fourteen-day
detention is required before such a petition may be filed.
The court shall conduct the hearing on the petition filed under this subsection
within five judicial days of the date the petition is filed. The court may continue
the hearing upon the written request of the person named in the petition or the
person's attorney, for good cause shown, which continuance shall not exceed
five additional judicial days. If the person named in the petition requests a
jury trial, the trial shall commence within ten judicial days of the date of
the filing of the petition. The burden of proof shall be by clear, cogent, and
convincing evidence and shall be upon the petitioner. The person shall be
present at such proceeding, which shall in all respects accord with the
constitutional guarantees of due process of law and the rules of evidence
pursuant to RCW 71.05.250.
During the proceeding the person named in the petition shall continue to be
detained and treated until released by order of the court. If no order has been
made within thirty days after the filing of the petition, not including any
extensions of time requested by the detained person or his or her attorney, the
detained person shall be released.
(3) If a
county designated mental health professional or the professional person and
prosecuting attorney for the county in which the criminal charge was dismissed
or attorney general, as appropriate, stipulate that the individual does not
present a likelihood of serious harm or is not gravely disabled, the hearing
under this section is not required and the individual, if in custody, shall be
released.
(4) The
individual shall have the rights specified in RCW 71.05.250.
RCW 71.05.237
Judicial proceedings -- Court to enter findings when recommendations of
professional person not followed.
In any
judicial proceeding in which a professional person has made a recommendation
regarding whether an individual should be committed for treatment under this chapter,
and the court does not follow the recommendation, the court shall enter
findings that state with particularity its reasoning, including a finding
whether the state met its burden of proof in showing whether the person
presents a likelihood of serious harm.
RCW 71.05.240
Petition for involuntary treatment or alternative treatment--Probable cause
hearing.
If a
petition is filed for fourteen day involuntary treatment or ninety days of less
restrictive alternative treatment, the court shall hold a probable cause
hearing within seventy-two hours of the initial detention of such person as
determined in RCW 71.05.180. If requested by the detained person or his or her
attorney, the hearing may be postponed for a period not to exceed forty-eight
hours. The hearing may also be continued subject to the conditions set forth in
RCW 71.05.210 or subject to the petitioner's showing of good cause for a period
not to exceed twenty-four hours.
At the conclusion of the probable cause hearing, if the court finds by a
preponderance of the evidence that such person, as the result of mental
disorder, presents a likelihood of serious harm, or is gravely disabled, and,
after considering less restrictive alternatives to involuntary detention and
treatment, finds that no such alternatives are in the best interests of such
person or others, the court shall order that such person be detained for
involuntary treatment not to exceed fourteen days in a facility certified to
provide treatment by the department. If the court finds that such person, as
the result of a mental disorder, presents a likelihood of serious harm, or is
gravely disabled, but that treatment in a less restrictive setting than
detention is in the best interest of such person or others, the court shall
order an appropriate less restrictive course of treatment for not to exceed
ninety days.
The court shall specifically state to such person and give such person notice
in writing that if involuntary treatment beyond the fourteen day period or
beyond the ninety days of less restrictive treatment is to be sought, such person will have the right to a full hearing or
jury trial as required by RCW 71.05.310. The court shall also provide written
notice that the person is barred from the possession of firearms.
RCW 71.05.245
Determination of likelihood of serious harm -- Use of recent history evidence.
In making a
determination of whether there is a likelihood of serious harm in a hearing
conducted under RCW 71.05.240 or 71.05.320, the court shall give great weight
to any evidence before the court regarding whether the person has: (1) A recent
history of one or more violent acts; or (2) a recent history of one or more
commitments under this chapter or its equivalent provisions under the laws of
another state which were based on a likelihood of serious harm. The existence
of prior violent acts or commitments under this chapter or its equivalent shall
not be the sole basis for determining whether a person presents a likelihood of
serious harm.
RCW 71.05.250
Probable cause hearing -- Detained person's rights -- Waiver of privilege --
Limitation -- Records as evidence.
At the
probable cause hearing the detained person shall have the following rights in
addition to the rights previously specified:
(1) To present
evidence on his or her behalf;
(2) To cross-examine
witnesses who testify against him or her;
(3) To be proceeded
against by the rules of evidence;
(4) To remain silent;
(5) To view and copy
all petitions and reports in the court file.
The physician-patient privilege or the psychologist-client privilege shall be
deemed waived in proceedings under this chapter relating to the administration
of antipsychotic medications. As to other proceedings
under this chapter, the privileges shall be waived when a court of competent
jurisdiction in its discretion determines that such waiver is necessary to
protect either the detained person or the public.
The waiver of a privilege under this section is limited to records or testimony
relevant to evaluation of the detained person for purposes of a proceeding
under this chapter. Upon motion by the detained person or on its own motion,
the court shall examine a record or testimony sought by a petitioner to
determine whether it is within the scope of the waiver.
The record maker shall not be required to testify in order to introduce medical
or psychological records of the detained person so long as the requirements of
RCW 5.45.020 are met except that portions of the record which contains opinions
as to the detained person's mental state must be deleted from such records
unless the person making such conclusions is available for cross-examination.
RCW 71.05.260
Release from involuntary intensive treatment -- Exception.
(1)
Involuntary intensive treatment ordered at the time of the probable cause
hearing shall be for no more than fourteen days, and shall terminate sooner
when, in the opinion of the professional person in charge of the facility or
his or her professional designee, (a) the person no longer constitutes a likelihood
of serious harm, or (b) no longer is gravely disabled, or (c) is prepared to
accept voluntary treatment upon referral, or (d) is to remain in the facility
providing intensive treatment on a voluntary basis.
(2) A
person who has been detained for fourteen days of intensive treatment shall be
released at the end of the fourteen days unless one of the following applies:
(a) Such person agrees to receive further treatment on a voluntary basis; or
(b) such person is a patient to whom RCW 71.05.280 is applicable.
RCW 71.05.270
Temporary release.
Nothing in
this chapter shall prohibit the professional person in charge of a treatment
facility, or his or her professional designee, from permitting a person
detained for intensive treatment to leave the facility for prescribed periods
during the term of the person's detention, under such conditions as may be
appropriate.
RCW 71.05.280
Additional confinement -- Grounds.
At the
expiration of the fourteen-day period of intensive treatment, a person may be confined
for further treatment pursuant to RCW 71.05.320 if:
(1) Such person after having been taken into custody for
evaluation and treatment has threatened, attempted, or inflicted:
(a) Physical harm upon the person of another or himself or
herself, or substantial damage upon the property of another, and
(b) as a result of mental disorder presents a likelihood of
serious harm; or
(2) Such person was taken into custody as a result of
conduct in which he or she attempted or inflicted physical harm upon the person
of another or himself or herself, or substantial damage upon the property of
others, and continues to present, as a result of mental disorder, a likelihood
of serious harm; or
(3) Such person has been determined to be incompetent and
criminal charges have been dismissed pursuant to RCW 10.77.090 (4), and has
committed acts constituting a felony, and as a result of a mental disorder,
presents a substantial likelihood of repeating similar acts. In any proceeding
pursuant to this subsection it shall not be necessary to show intent,
willfulness, or state of mind as an element of the crime; or
(4) Such person is gravely disabled.
RCW 71.05.285
Additional confinement -- Prior history evidence.
In
determining whether an inpatient or less restrictive alternative commitment
under the process provided in RCW 71.05.280 and 71.05.320(2) is appropriate,
great weight shall be given to evidence of a prior history or pattern of
decompensation and discontinuation of treatment resulting in: (1) Repeated
hospitalizations; or (2) repeated peace officer interventions resulting in
juvenile offenses, criminal charges, diversion programs, or jail admissions.
Such evidence may be used to provide a factual basis for concluding that the
individual would not receive, if released, such care as is essential for his or
her health or safety.
RCW 71.05.290
Petition for additional confinement -- Affidavit.
(1) At any
time during a person's fourteen day intensive treatment period, the
professional person in charge of a treatment facility or his or her
professional designee or the county designated mental health professional may
petition the superior court for an order requiring such person to undergo an
additional period of treatment. Such petition must be based on one or more of
the grounds set forth in RCW 71.05.280.
(2) The
petition shall summarize the facts which support the need for further
confinement and shall be supported by affidavits signed by two examining
physicians, or by one examining physician and examining mental health professional.
The affidavits shall describe in detail the behavior of the detained person
which supports the petition and shall explain what, if any, less restrictive
treatments which are alternatives to detention are available to such person,
and shall state the willingness of the affiant to
testify to such facts in subsequent judicial proceedings under this chapter.
(3) If a
person has been determined to be incompetent pursuant to RCW 10.77.090(4), then
the professional person in charge of the treatment facility or his or her
professional designee or the county designated mental health professional may
directly file a petition for one hundred eighty day treatment under RCW
71.05.280(3). No petition for initial detention or fourteen day detention is
required before such a petition may be filed.
RCW 71.05.300
Filing of petition -- Appearance -- Notice -- Advice as to rights --
Appointment of representative.
The
petition for ninety day treatment shall be filed with the clerk of the superior
court at least three days before expiration of the fourteen-day period of
intensive treatment. At the time of filing such petition, the clerk shall set a
time for the person to come before the court on the next judicial day after the
day of filing unless such appearance is waived by the person's attorney, and
the clerk shall notify the county designated mental health professional. The
county designated mental health professional shall immediately notify the
person detained, his or her attorney, if any, and his or her guardian or
conservator, if any, and the prosecuting attorney, and provide a copy of the
petition to such persons as soon as possible.
At the time set for appearance the detained person shall be brought before the
court, unless such appearance has been waived and the court shall advise him or
her of his or her right to be represented by an attorney and of his or her
right to a jury trial. If the detained person is not represented by an
attorney, or is indigent or is unwilling to retain an attorney, the court shall
immediately appoint an attorney to represent him or her. The court shall, if
requested, appoint a reasonably available licensed physician, psychologist, or
psychiatrist, designated by the detained person to examine and testify on
behalf of the detained person.
The court may, if requested, also appoint a professional person as defined in
RCW 71.05.020 to seek less restrictive alternative courses of treatment and to
testify on behalf of the detained person. In the case of a developmentally
disabled person who has been determined to be incompetent pursuant to RCW
10.77.090(4), then the appointed professional person under this section shall
be a developmental disabilities professional.
The court shall also set a date for a full hearing on the petition as provided
in RCW 71.05.310.
RCW 71.05.310
Time for hearing -- Due process -- Jury trial -- Continuation of treatment.
The court
shall conduct a hearing on the petition for ninety day treatment within five
judicial days of the first court appearance after the probable cause hearing.
The court may continue the hearing upon the written request of the person named
in the petition or the person's attorney, for good cause shown, which
continuance shall not exceed five additional judicial days. If the person named
in the petition requests a jury trial, the trial shall commence within ten
judicial days of the first court appearance after the probable cause hearing.
The burden of proof shall be by clear, cogent, and convincing evidence and
shall be upon the petitioner. The person shall be present at such proceeding,
which shall in all respects accord with the constitutional guarantees of due
process of law and the rules of evidence pursuant to RCW 71.05.250.
During the proceeding, the person named in the petition shall continue to be
treated until released by order of the superior court. If no order has been
made within thirty days after the filing of the petition, not including
extensions of time requested by the detained person or his or her attorney, the
detained person shall be released.
RCW 71.05.320
Remand for additional treatment -- Duration -- Developmentally disabled --
Grounds -- Hearing.
(1) If the
court or jury finds that grounds set forth in RCW 71.05.280 have been proven and
that the best interests of the person or others will not be served by a less
restrictive treatment which is an alternative to detention, the court shall
remand him or her to the custody of the department or to a facility certified
for ninety day treatment by the department for a further period of intensive
treatment not to exceed ninety days from the date of judgment: PROVIDED, That
if the grounds set forth in RCW 71.05.280(3) are the basis of commitment, then
the period of treatment may be up to but not exceed one hundred eighty days
from the date of judgment in a facility certified for one hundred eighty day
treatment by the department. If the committed person is developmentally
disabled and has been determined incompetent pursuant to RCW 10.77.090(4), and
the best interests of the person or others will not be served by a
less-restrictive treatment which is an alternative to detention, the court
shall remand him or her to the custody of the department or to a facility
certified for one hundred eighty-day treatment by the department. When
appropriate and subject to available funds, treatment and training of such
persons must be provided in a program specifically reserved for the treatment
and training of developmentally disabled persons. A person so committed shall
receive habilitation services pursuant 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 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. An order for treatment less restrictive than involuntary detention
may include conditions, and if such conditions are not adhered to, the
designated mental health professional or developmental disabilities
professional may order the person apprehended under the terms and conditions of
RCW 71.05.340.
If the court or jury finds that grounds set forth in RCW 71.05.280 have been
proven, but finds that treatment less restrictive than detention will be in the
best interest of the person or others, then the court shall remand him or her
to the custody of the department or to a facility certified for ninety day
treatment by the department or to a less restrictive alternative for a further
period of less restrictive treatment not to exceed ninety days from the date of
judgment: PROVIDED, That if the grounds set forth in RCW 71.05.280(3) are the
basis of commitment, then the period of treatment may be up to but not exceed
one hundred eighty days from the date of judgment.
(2) The
person shall be released from involuntary treatment at the expiration of the
period of commitment imposed under subsection (1) of this section unless the
superintendent or professional person in charge of the facility in which he or
she is confined, or in the event of a less restrictive alternative, the
designated mental health professional or developmental disabilities
professional, files a new petition for involuntary treatment on the grounds
that the committed person;
(a) During the current period of court ordered treatment: (i) Has threatened, attempted, or inflicted physical harm
upon the person of another, or substantial damage upon the property of another,
and (ii) as a result of mental disorder or developmental disability presents a
likelihood of serious harm; or
(b) Was taken into custody as a result of conduct in which
he or she attempted or inflicted serious physical harm upon the person of
another, and continues to present, as a result of mental disorder or
developmental disability a likelihood of serious harm; or
(c) Is in custody pursuant to RCW 71.05.280(3) and as a
result of mental disorder or developmental disability presents a substantial
likelihood of repeating similar acts considering the charged criminal behavior,
life history, progress in treatment, and the public safety; or
(d) Continues to be gravely disabled.
If the conduct required to be proven in (b) and (c) of this subsection was
found by a judge or jury in a prior trial under this chapter, it shall not be
necessary to reprove that element. Such new petition for involuntary treatment
shall be filed and heard in the superior court of the county of the facility
which is filing the new petition for involuntary treatment unless good cause is
shown for a change of venue. The cost of the proceedings shall be borne by the
state.
The hearing shall be held as provided in RCW 71.05.310, and if the court or
jury finds that the grounds for additional confinement as set forth in this
subsection are present, the court may order the committed person returned for
an additional period of treatment not to exceed one hundred eighty days from
the date of judgment. At the end of the one hundred eighty day period of
commitment, the committed person shall be released unless a petition for
another one hundred eighty day period of continued treatment is filed and heard
in the same manner as provided in this subsection. Successive one hundred
eighty day commitments are permissible on the same grounds and pursuant to the
same procedures as the original one hundred eighty day commitment.
(3) No
person committed as provided in this section may be detained unless a valid
order of commitment is in effect. No order of commitment can exceed one hundred
eighty days in length.
RCW 71.05.325
Release -- Authorized leave -- Notice to prosecuting attorney.
(1) Before a
person committed under grounds set forth in RCW 71.05.280(3) is released
because a new petition for involuntary treatment has not been filed under RCW
71.05.320(2), the superintendent, professional person, or designated mental
health professional responsible for the decision whether to file a new petition
shall in writing notify the prosecuting attorney of the county in which the
criminal charges against the committed person were dismissed, of the decision
not to file a new petition for involuntary treatment. Notice shall be provided
at least forty-five days before the period of commitment expires.
(2)
(a) Before a person committed under grounds set forth in RCW
71.05.280(3) is permitted temporarily to leave a treatment facility pursuant to
RCW 71.05.270 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 of the person's destination and the
prosecuting attorney of the county in which the criminal charges against the
committed person were dismissed. The notice shall be provided at least
forty-five days before the anticipated leave and shall describe the conditions
under which the leave is to occur.
(b) The provisions of RCW 71.05.330(2) apply to proposed
leaves, and either or both prosecuting attorneys receiving notice under this
subsection may petition the court under RCW 71.05.330(2).
(3) Nothing
in this section shall be construed to authorize detention of a person unless a
valid order of commitment is in effect.
(4) The
existence of the notice requirements in this section will not require any
extension of the leave date in the event the leave plan changes after notification.
(5) The
notice requirements contained in this section shall not apply to emergency
medical transfers.
(6) The
notice provisions of this section are in addition to those provided in RCW
71.05.425.
RCW 71.05.330
Early release -- Notice to court and prosecuting attorney -- Petition for
hearing.
(1) Nothing
in this chapter shall prohibit the superintendent or professional person in
charge of the hospital or facility in which the person is being involuntarily
treated from releasing him or her prior to the expiration of the commitment
period when, in the opinion of the superintendent or professional person in
charge, the person being involuntarily treated no longer presents a likelihood
of serious harm.
Whenever the superintendent or professional person in charge of a hospital or
facility providing involuntary treatment pursuant to this chapter releases a
person prior to the expiration of the period of commitment, the superintendent
or professional person in charge shall in writing notify the court which
committed the person for treatment.
(2) Before
a person committed under grounds set forth in RCW 71.05.280(3) or
71.05.320(2)(c) is released under this section, the superintendent or
professional person in charge shall in writing notify the prosecuting attorney
of the county in which the criminal charges against the committed person were
dismissed, of the release date. Notice shall be provided at least thirty days
before the release date. Within twenty days after receiving notice, the
prosecuting attorney may petition the court in the county in which the person
is being involuntarily treated for a hearing to determine whether the person is
to be released. The prosecuting attorney shall provide a copy of the petition
to the superintendent or professional person in charge of the hospital or
facility providing involuntary treatment, the attorney, if any, and the
guardian or conservator of the committed person. The court shall conduct a
hearing on the petition within ten days of filing the petition. The committed
person shall have the same rights with respect to notice, hearing, and counsel
as for an involuntary treatment proceeding, except as set forth in this
subsection and except that there shall be no right to jury trial. The issue to
be determined at the hearing is whether or not the person may be released
without substantial danger to other persons, or substantial likelihood of
committing criminal acts jeopardizing public safety or security. If the court
disapproves of the release, it may do so only on the basis of substantial
evidence. Pursuant to the determination of the court upon the hearing, the
committed person shall be released or shall be returned for involuntary
treatment subject to release at the end of the period for which he or she was
committed, or otherwise in accordance with the provisions of this chapter.
RCW 71.05.335
Modification of order for inpatient treatment -- Intervention by prosecuting
attorney.
In any
proceeding under this chapter to modify a commitment order of a person committed
to inpatient treatment under grounds set forth in RCW 71.05.280(3) or
71.05.320(2)(c) in which the requested relief includes treatment less
restrictive than detention, the prosecuting attorney shall be entitled to
intervene. The party initiating the motion to modify the commitment order shall
serve the prosecuting attorney of the county in which the criminal charges
against the committed person were dismissed with written notice and copies of
the initiating papers.
RCW 71.05.340
Outpatient treatment or care -- Conditional release -- Procedures for
revocation.
(1)
(a) When, in the opinion of the superintendent or the
professional person in charge of the hospital or facility providing involuntary
treatment, the committed person can be appropriately served by outpatient
treatment prior to or at the expiration of the period of commitment, then such
outpatient care may be required as a term of conditional release for a period
which, when added to the inpatient treatment period, shall not exceed the
period of commitment. If the hospital or facility designated to provide
outpatient treatment is other than the facility providing involuntary
treatment, the outpatient facility so designated must agree in writing to
assume such responsibility. A copy of the terms of conditional release shall be
given to the patient, the county designated mental health professional in the
county in which the patient is to receive outpatient treatment, and to the
court of original commitment.
(b) Before a person committed under grounds set forth in RCW
71.05.280(3) or 71.05.320(2)(c) is conditionally
released under (a) of this subsection, the superintendent or professional
person in charge of the hospital or facility providing involuntary treatment
shall in writing notify the prosecuting attorney of the county in which the
criminal charges against the committed person were dismissed, of the decision
to conditionally release the person. Notice and a copy of the terms of
conditional release shall be provided at least thirty days before the person is
released from inpatient care. Within twenty days after receiving notice, the
prosecuting attorney may petition the court in the county that issued the
commitment order to hold a hearing to determine whether the person may be
conditionally released and the terms of the conditional release. The
prosecuting attorney shall provide a copy of the petition to the superintendent
or professional person in charge of the hospital or facility providing
involuntary treatment, the attorney, if any, and guardian or conservator of the
committed person, and the court of original commitment. If the county in which
the committed person is to receive outpatient treatment is the same county in
which the criminal charges against the committed person were dismissed, then
the court shall, upon the motion of the prosecuting attorney, transfer the
proceeding to the court in that county. The court shall conduct a hearing on
the petition within ten days of the filing of the petition. The committed person
shall have the same rights with respect to notice, hearing, and counsel as for
an involuntary treatment proceeding, except as set forth in this subsection and
except that there shall be no right to jury trial. The issue to be determined
at the hearing is whether or not the person may be conditionally released
without substantial danger to other persons, or substantial likelihood of
committing criminal acts jeopardizing public safety or security. If the court
disapproves of the conditional release, it may do so only on the basis of
substantial evidence. Pursuant to the determination of the court upon the
hearing, the conditional release of the person shall be approved by the court
on the same or modified conditions or the person shall be returned for involuntary
treatment on an inpatient basis subject to release at the end of the period for
which he or she was committed, or otherwise in accordance with the provisions
of this chapter.
(2) The
hospital or facility designated to provide outpatient care or the secretary may
modify the conditions for continued release when such modification is in the
best interest of the person. Notification of such changes shall be sent to all
persons receiving a copy of the original conditions.
(3)
(a) If the hospital or facility designated to provide
outpatient care, the county designated mental health professional, or the
secretary determines that:
(i) A conditionally released
person is failing to adhere to the terms and conditions of his or her release;
(ii) Substantial deterioration in a conditionally released
person's functioning has occurred;
(iii) There is evidence of substantial decompensation with a
reasonable probability that the decompensation can be reversed by further
inpatient treatment; or
(iv) The person poses a likelihood of serious harm.
Upon notification by the hospital or facility designated to
provide outpatient care, or on his or her own motion, the county designated
mental health professional or the secretary may order that the conditionally
released person be apprehended and taken into custody and temporarily detained
in an evaluation and treatment facility in or near the county in which he or
she is receiving outpatient treatment.
(b) The hospital or facility designated to provide
outpatient treatment shall notify the secretary or county designated mental
health professional when a conditionally released person fails to adhere to
terms and conditions of his or her conditional release or experiences
substantial deterioration in his or her condition and, as a result, presents an
increased likelihood of serious harm. The county designated mental health
professional or secretary shall order the person apprehended and temporarily
detained in an evaluation and treatment facility in or near the county in which
he or she is receiving outpatient treatment.
(c) A person detained under this subsection (3) shall be
held until such time, not exceeding five days, as a hearing can be scheduled to
determine whether or not the person should be returned to the hospital or facility
from which he or she had been conditionally released. The county designated
mental health professional or the secretary may modify or rescind such order at
any time prior to commencement of the court hearing.
(d) The court that originally ordered commitment shall be
notified within two judicial days of a person's detention under the provisions
of this section, and the county designated mental health professional or the
secretary shall file his or her petition and order of apprehension and
detention with the court and serve them upon the person detained. His or her
attorney, if any, and his or her guardian or conservator, if any, shall receive
a copy of such papers as soon as possible. Such person shall have the same
rights with respect to notice, hearing, and counsel as for an involuntary
treatment proceeding, except as specifically set forth in this section and
except that there shall be no right to jury trial. The issues to be determined
shall be:
(i) Whether the conditionally
released person did or did not adhere to the terms and conditions of his or her
conditional release;
(ii) that substantial deterioration in the person's
functioning has occurred;
(iii) there is evidence of substantial decompensation with a
reasonable probability that the decompensation can be reversed by further
inpatient treatment; or
(iv) there is a likelihood of serious harm; and, if any of
the conditions listed in this subsection (3)(d) have
occurred, whether the terms of conditional release should be modified or the
person should be returned to the facility.
(e) Pursuant to the determination of the court upon such
hearing, the conditionally released person shall either continue to be
conditionally released on the same or modified conditions or shall be returned
for involuntary treatment on an inpatient basis subject to release at the end
of the period for which he or she was committed for involuntary treatment, or
otherwise in accordance with the provisions of this chapter. Such hearing may
be waived by the person and his or her counsel and his or her guardian or
conservator, if any, but shall not be waivable unless
all such persons agree to waive, and upon such waiver the person may be
returned for involuntary treatment or continued on conditional release on the
same or modified conditions.
(4) The
proceedings set forth in subsection (3) of this section may be initiated by the
county designated mental health professional or the secretary on the same basis
set forth therein without requiring or ordering the apprehension and detention
of the conditionally released person, in which case the court hearing shall
take place in not less than five days from the date of service of the petition
upon the conditionally released person.
Upon expiration of the period of commitment, or when the person is released
from outpatient care, notice in writing to the court which committed the person
for treatment shall be provided.
(5) The
grounds and procedures for revocation of less restrictive alternative treatment
shall be the same as those set forth in this section for conditional releases.
(6) In the
event of a revocation of a conditional release, the subsequent treatment period
may be for no longer than the actual period authorized in the original court
order.
RCW 71.05.350
Assistance to released persons.
No indigent
patient shall be conditionally released or discharged from involuntary
treatment without suitable clothing, and the superintendent of a state hospital
shall furnish the same, together with such sum of money as he or she deems necessary
for the immediate welfare of the patient. Such sum of money shall be the same
as the amount required by RCW 72.02.100 to be provided to persons in need being
released from correctional institutions. As funds are available, the secretary
may provide payment to indigent persons conditionally released pursuant to this
chapter consistent with the optional provisions of RCW 72.02.100 and 72.02.110,
and may adopt rules and regulations to do so.
RCW 71.05.360
Rights of involuntarily detained persons.
(1) Every
person involuntarily detained or committed under the provisions of this chapter
shall be entitled to all the rights set forth in this chapter and shall retain
all rights not denied him or her under this chapter.
(2) Each
person involuntarily detained or committed pursuant to this chapter shall have
the right to adequate care and individualized treatment.
RCW 71.05.370
Rights -- Posting of list.
Insofar as
danger to the individual or others is not created, each person involuntarily
detained, treated in a less restrictive alternative course of treatment, or
committed for treatment and evaluation pursuant to this chapter shall have, in
addition to other rights not specifically withheld by law, the following
rights, a list of which shall be prominently posted in all facilities,
institutions, and hospitals providing such services:
(1) To wear his or her own clothes and to keep and use his
or her own personal possessions, except when deprivation of same is essential
to protect the safety of the resident or other persons;
(2) To keep and be allowed to spend a reasonable sum of his
or her own money for canteen expenses and small
purchases;
(3) To have access to individual storage space for his or
her private use;
(4) To have visitors at reasonable times;
(5) To have reasonable access to a telephone, both to make
and receive confidential calls;
(6) To have ready access to letter writing materials,
including stamps, and to send and receive uncensored correspondence through the
mails;
(7) Not to consent to the administration of antipsychotic medications beyond the hearing conducted
pursuant to RCW 71.05.320(2) or the performance of electroconvulsant
therapy or surgery, except emergency life-saving surgery, unless ordered by a
court of competent jurisdiction pursuant to the following standards and
procedures:
(a) The administration of antipsychotic
medication or electroconvulsant therapy shall not be
ordered unless the petitioning party proves by clear, cogent, and convincing
evidence that there exists a compelling state interest that justifies
overriding the patient's lack of consent to the administration of antipsychotic medications or electroconvulsant
therapy, that the proposed treatment is necessary and effective, and that
medically acceptable alternative forms of treatment are not available, have not
been successful, or are not likely to be effective.
(b) The court shall make specific findings of fact
concerning: (i) The existence of one or more
compelling state interests; (ii) the necessity and effectiveness of the
treatment; and (iii) the person's desires regarding the proposed treatment. If
the patient is unable to make a rational and informed decision about consenting
to or refusing the proposed treatment, the court shall make a substituted
judgment for the patient as if he or she were competent to make such a
determination.
(c) The person shall be present at any hearing on a request
to administer antipsychotic medication or electroconvulsant therapy filed pursuant to this
subsection. The person has the right: (i) To be
represented by an attorney; (ii) to present evidence; (iii) to cross-examine
witnesses; (iv) to have the rules of evidence enforced; (v) to remain silent;
(vi) to view and copy all petitions and reports in the court file; and (vii) to
be given reasonable notice and an opportunity to prepare for the hearing. The
court may appoint a psychiatrist, psychologist within their scope of practice,
or physician to examine and testify on behalf of such person. The court shall
appoint a psychiatrist, psychologist within their scope of practice, or
physician designated by such person or the person's counsel to testify on
behalf of the person in cases where an order for electroconvulsant
therapy is sought.
(d) An order for the administration of antipsychotic
medications entered following a hearing conducted pursuant to this section
shall be effective for the period of the current involuntary treatment order,
and any interim period during which the person is awaiting trial or hearing on
a new petition for involuntary treatment or involuntary medication.
(e) Any person detained pursuant to RCW 71.05.320(2), who
subsequently refuses antipsychotic medication, shall
be entitled to the procedures set forth in RCW 71.05.370(7).
(f) Antipsychotic medication may
be administered to a nonconsenting person detained or
committed pursuant to this chapter without a court order pursuant to RCW
71.05.215(2) or under the following circumstances:
(i) A person presents an imminent
likelihood of serious harm;
(ii) Medically acceptable alternatives to administration of antipsychotic medications are not available, have not been
successful, or are not likely to be effective; and
(iii) In the opinion of the physician with responsibility
for treatment of the person, or his or her designee, the person's condition
constitutes an emergency requiring the treatment be instituted before a
judicial hearing as authorized pursuant to this section can be held.
If antipsychotic medications are
administered over a person's lack of consent pursuant to this subsection, a
petition for an order authorizing the administration of antipsychotic
medications shall be filed on the next judicial day. The hearing shall be held
within two judicial days. If deemed necessary by the physician with
responsibility for the treatment of the person, administration of antipsychotic medications may continue until the hearing is
held;
(8) To dispose of property and sign contracts unless such
person has been adjudicated an incompetent in a court proceeding directed to
that particular issue;
(9) Not to have psychosurgery performed on him or her under
any circumstances.
RCW 71.05.380
Rights of voluntarily committed persons.
All persons
voluntarily entering or remaining in any facility, institution, or hospital providing
evaluation and treatment for mental disorder shall have no less than all rights
secured to involuntarily detained persons by RCW 71.05.360 and 71.05.370.
RCW 71.05.390
Confidential information and records -- Disclosure.
Except as
provided in this section, the fact of admission and all information and records
compiled, obtained, or maintained in the course of providing services to either
voluntary or involuntary recipients of services at public or private agencies
shall be confidential.
Information and records may be disclosed only:
(1) In
communications between qualified professional persons to meet the requirements
of this chapter, in the provision of services or appropriate referrals, or in
the course of guardianship proceedings. The consent of the patient, or his or
her guardian, shall be obtained before information or records may be disclosed
by a professional person employed by a facility unless provided to a
professional person: (a) Employed by the facility; (b) who has medical responsibility
for the patient's care; (c) who is a county designated mental health
professional; (d) who is providing services under chapter 71.24 RCW; (e) who is
employed by a state or local correctional facility where the person is
confined; or (f) who is providing evaluation, treatment, or follow-up services
under chapter 10.77 RCW.
(2) When
the communications regard the special needs of a patient and the necessary
circumstances giving rise to such needs and the disclosure is made by a
facility providing outpatient services to the operator of a care facility in
which the patient resides.
(3) When
the person receiving services, or his or her guardian, designates persons to
whom information or records may be released, or if the person is a minor, when
his or her parents make such designation.
(4) To the
extent necessary for a recipient to make a claim, or for a claim to be made on
behalf of a recipient for aid, insurance, or medical assistance to which he or
she may be entitled.
(5) For
either program evaluation or research, or both: PROVIDED, That the secretary
adopts rules for the conduct of the evaluation or research, or both. Such rules
shall include, but need not be limited to, the requirement that all evaluators
and researchers must sign an oath of confidentiality substantially as follows:
"As a condition of conducting evaluation or research concerning persons
who have received services from (fill in the facility, agency, or person) I, .
. . . . . . . ., agree not to divulge, publish, or otherwise make known to
unauthorized persons or the public any information obtained in the course of
such evaluation or research regarding persons who have received services such
that the person who received such services is identifiable.
I recognize that unauthorized release of confidential information may subject
me to civil liability under the provisions of state law.
|
|
/s/ . . .
. . . . . . . . . " |
(6) To the courts as necessary to the administration of this chapter or to a court
ordering an evaluation or treatment under chapter 10.77 RCW solely for the
purpose of preventing the entry of any evaluation or treatment order that is
inconsistent with any order entered under this chapter.
(7) To law
enforcement officers, public health officers, or personnel of the department of
corrections or the indeterminate sentence review board for persons who are the
subject of the records and who are committed to the custody of the department
of corrections or indeterminate sentence review board which information or
records are necessary to carry out the responsibilities of their office. Except
for dissemination of information released pursuant to RCW 71.05.425 and
4.24.550, regarding persons committed under this chapter under RCW 71.05.280(3)
and 71.05.320(2)(c) after dismissal of a sex offense as defined in RCW
9.94A.030, the extent of information that may be released is limited as
follows:
(a) Only the fact, place, and date of involuntary
commitment, the fact and date of discharge or release, and the last known
address shall be disclosed upon request; and
(b) The law enforcement and public health officers or
personnel of the department of corrections or indeterminate sentence review
board shall be obligated to keep such information confidential in accordance
with this chapter; and
(c) Additional information shall be disclosed only after
giving notice to said person and his or her counsel and upon a showing of
clear, cogent, and convincing evidence that such information is necessary and
that appropriate safeguards for strict confidentiality are and will be
maintained. However, in the event the said person has escaped from custody,
said notice prior to disclosure is not necessary and that the facility from
which the person escaped shall include an evaluation as to whether the person
is of danger to persons or property and has a propensity toward violence.
(8) To the
attorney of the detained person.
(9) To the
prosecuting attorney as necessary to carry out the responsibilities of the
office under RCW 71.05.330(2) and71.05.340 (1)(b) and 71.05.335. The prosecutor
shall be provided access to records regarding the committed person's treatment
and prognosis, medication, behavior problems, and other records relevant to the
issue of whether treatment less restrictive than inpatient treatment is in the
best interest of the committed person or others. Information shall be disclosed
only after giving notice to the committed person and the person's counsel.
(10) To
appropriate law enforcement agencies and to a person, when the identity of the
person is known to the public or private agency, whose health and safety has
been threatened, or who is known to have been repeatedly harassed, by the
patient. The person may designate a representative to receive the disclosure.
The disclosure shall be made by the professional person in charge of the public
or private agency or his or her designee and shall include the dates of
commitment, admission, discharge, or release, authorized or unauthorized
absence from the agency's facility, and only such other information that is
pertinent to the threat or harassment. The decision to disclose or not shall
not result in civil liability for the agency or its employees so long as the
decision was reached in good faith and without gross negligence.
(11) To
appropriate law enforcement agencies, upon request, all necessary and relevant
information in the event of a crisis or emergent situation that poses a
significant and imminent risk to the public. The decision to disclose or not
shall not result in civil liability for the mental health service provider or
its employees so long as the decision was reached in good faith and without
gross negligence.
(12) To the
persons designated in RCW 71.05.425 for the purposes described in that section.
(13) Civil
liability and immunity for the release of information about a particular person
who is committed to the department under RCW 71.05.280(3) and 71.05.320(2)(c) after dismissal of a sex offense as defined in RCW
9.94A.030, is governed by RCW 4.24.550.
(14) To a
patient's next of kin, guardian, or conservator, if any, in the event of death,
as provided in RCW 71.05.400.
(15) To the
department of health for the purposes of determining compliance with state or
federal licensure, certification, or registration rules or laws. However, the
information and records obtained under this subsection are exempt from public
inspection and copying pursuant to chapter 42.17 RCW.
The fact of admission, as well as all records, files, evidence, findings, or
orders made, prepared, collected, or maintained pursuant to this chapter shall
not be admissible as evidence in any legal proceeding outside this chapter
without the written consent of the person who was the subject of the proceeding
except in a subsequent criminal prosecution of a person committed pursuant to
RCW 71.05.280(3) or 71.05.320(2)(c) on charges that were dismissed pursuant to
chapter 10.77 RCW due to incompetency to stand trial or in a civil commitment
proceeding pursuant to chapter 71.09 RCW. The records and files maintained in
any court proceeding pursuant to this chapter shall be confidential and
available subsequent to such proceedings only to the person who was the subject
of the proceeding or his or her attorney. In addition, the court may order the
subsequent release or use of such records or files only upon good cause shown
if the court finds that appropriate safeguards for strict confidentiality are
and will be maintained.
RCW 71.05.395
Application of uniform health care information act, chapter 70.02 RCW.
Except as
otherwise provided in this chapter, the uniform health care information act,
chapter 70.02 RCW, applies to all records and information compiled, obtained,
or maintained in the course of providing services.
RCW 71.05.400
Release of information to patient's next of kin, attorney, guardian,
conservator -- Notification of patient's death.
(1) A
public or private agency shall release to a patient's next of kin, attorney,
guardian, or conservator, if any,
(a) The information that the person is presently a patient
in the facility or that the person is seriously physically ill;
(b) A statement evaluating the mental and physical condition
of the patient, and a statement of the probable duration of the patient's confinement,
if such information is requested by the next of kin, attorney, guardian, or
conservator; and such other information requested by the next of kin or
attorney as may be necessary to decide whether or not proceedings should be
instituted to appoint a guardian or conservator.
(2) Upon
the death of a patient, his or her next of kin, guardian, or conservator, if
any, shall be notified.
Next of kin who are of legal age and competent shall be notified under this
section in the following order: Spouse, parents, children, brothers and
sisters, and other relatives according to the degree of relation. Access to all
records and information compiled, obtained, or maintained in the course of
providing services to a deceased patient shall be governed by RCW 70.02.140.
RCW 71.05.410
Notice of disappearance of patient.
When a
patient would otherwise be subject to the provisions of RCW 71.05.390 and
disclosure is necessary for the protection of the patient or others due to his
or her unauthorized disappearance from the facility, and his or her whereabouts
is unknown, notice of such disappearance, along with relevant information, may
be made to relatives and governmental law enforcement agencies designated by
the physician in charge of the patient or the professional person in charge of
the facility, or his or her professional designee.
RCW 71.05.420
Records of disclosure.
Except as
provided in RCW 71.05.425, when any disclosure of information or records is
made as authorized by RCW 71.05.390 through 71.05.410, the physician in charge
of the patient or the professional person in charge of the facility shall
promptly cause to be entered into the patient's medical record the date and
circumstances under which said disclosure was made, the names and relationships
to the patient, if any, of the persons or agencies to whom such disclosure was
made, and the information disclosed.
RCW 71.05.440
Action for unauthorized release of confidential information -- Liquidated
damages -- Treble damages -- Injunction.
Except as
provided in RCW 4.24.550, any person may bring an action against an individual
who has willfully released confidential information or records concerning him
or her in violation of the provisions of this chapter, for the greater of the
following amounts:
(1) One thousand dollars; or
(2) Three times the amount of actual damages sustained, if
any. It shall not be a prerequisite to recovery under this section that the
plaintiff shall have suffered or be threatened with special, as contrasted with
general, damages.
Any person may bring an action to enjoin the release of confidential
information or records concerning him or her or his or her ward, in violation
of the provisions of this chapter, and may in the same action seek damages as
provided in this section.
The court may award to the plaintiff, should he or she prevail in an action
authorized by this section, reasonable attorney fees in addition to those
otherwise provided by law.
RCW 71.05.445
Mental health services information -- Release to department of corrections --
Rules.
(1) The
definitions in this subsection apply throughout this section unless the context
clearly requires otherwise.
(a) "Information related to mental health
services" means all information and records compiled, obtained, or
maintained in the course of providing services to either voluntary or
involuntary recipients of services by a mental health service provider. This
may include documents of legal proceedings under this chapter or chapter 71.34
or 10.77 RCW, or somatic health care information.
(b) "Mental health service provider" means a
public or private agency that provides services to persons with mental
disorders as defined under RCW 71.05.020 and receives funding from public
sources. This includes evaluation and treatment facilities as defined in RCW
71.05.020, community mental health service delivery systems, or community
mental health programs as defined in RCW 71.24.025, and facilities conducting
competency evaluations and restoration under chapter 10.77 RCW.
(2) Information
related to mental health services delivered to a person subject to chapter
9.94A or 9.95 RCW shall be released, upon request, by a mental health service
provider to department of corrections personnel for whom the information is
necessary to carry out the responsibilities of their office. The information
must be provided only for the purpose of completing presentence
investigations, supervision of an incarcerated person, planning for and
provision of supervision of a person, or assessment of a person's risk to the
community. The request shall be in writing and shall not require the consent of
the subject of the records.
(3) The
information to be released to the department of corrections shall include all
relevant records and reports, as defined by rule, necessary for the department
of corrections to carry out its duties, including those records and reports
identified in subsection (2) of this section.
(4) The
department and the department of corrections, in consultation with regional
support networks, mental health service providers as defined in subsection (1)
of this section, mental health consumers, and advocates for persons with mental
illness, shall adopt rules to implement the provisions of this section related
to the type and scope of information to be released. These rules shall:
(a) Enhance and facilitate the ability of the department of
corrections to carry out its responsibility of planning and ensuring community
protection with respect to persons subject to sentencing under chapter 9.94A or
9.95 RCW, including accessing and releasing or disclosing information of
persons who received mental health services as a minor; and
(b) Establish requirements for the notification of persons
under the supervision of the department of corrections regarding the provisions
of this section.
(5) The
information received by the department of corrections under this section shall
remain confidential and subject to the limitations on disclosure outlined in
chapter 71.05 RCW, except as provided in RCW 72.09.585.
(6) No
mental health service provider or individual employed by a mental health
service provider shall be held responsible for information released to or used
by the department of corrections under the provisions of this section or rules
adopted under this section except under RCW 71.05.670 and 71.05.440.
(7)
Whenever federal law or federal regulations restrict the release of information
contained in the treatment records of any patient who receives treatment for alcoholism
or drug dependency, the release of the information may be restricted as
necessary to comply with federal law and regulations.
(8) This
section does not modify the terms and conditions of disclosure of information
related to sexually transmitted diseases under chapter 70.24 RCW.
RCW 71.05.450
Competency -- Effect -- Statement of
Competency
shall not be determined or withdrawn by operation of, or under the provisions
of this chapter. Except as chapter 9.41 RCW may limit the right of a person to
purchase or possess a firearm or to qualify for a concealed pistol license, no
person shall be presumed incompetent or lose any civil rights as a consequence
of receiving evaluation or treatment for mental disorder, either voluntarily or
involuntarily, or certification or commitment pursuant to this chapter or any
prior laws of this state dealing with mental illness. Any person who leaves a
public or private agency following evaluation or treatment for mental disorder
shall be given a written statement setting forth the substance of this section.
RCW 71.05.460
Right to counsel.
Every
person involuntarily detained shall immediately be informed of his or her right
to a hearing to review the legality of his or her detention and of his or her
right to counsel, by the professional person in charge of the facility
providing evaluation and treatment, or his or her designee, and, when
appropriate, by the court. If the person so elects, the court shall immediately
appoint an attorney to assist him or her.
RCW 71.05.470
Right to examination.
A person
challenging his or her detention or his or her attorney, shall have the right
to designate and have the court appoint a reasonably available independent
physician or licensed mental health professional to examine the person
detained, the results of which examination may be used in the proceeding. The
person shall, if he or she is financially able, bear the cost of such expert
information, otherwise such expert examination shall be at public expense.
RCW 71.05.480
Petitioning for release -- Writ of habeas corpus.
Nothing
contained in this chapter shall prohibit the patient from petitioning by writ
of habeas corpus for release.
RCW 71.05.490
Rights of persons committed before
Nothing in
this chapter shall prohibit a person committed on or prior to
RCW 71.05.500
Liability of applicant.
Any person
making or filing an application alleging that a person should be involuntarily
detained, certified, committed, treated, or evaluated pursuant to this chapter
shall not be rendered civilly or criminally liable where the making and filing
of such application was in good faith.
RCW 71.05.510
Damages for excessive detention.
Any
individual who knowingly, wilfully or through gross
negligence violates the provisions of this chapter by detaining a person for
more than the allowable number of days shall be liable to the person detained
in civil damages. It shall not be a prerequisite to an action under this
section that the plaintiff shall have suffered or be threatened with special,
as contrasted with general damages.
RCW 71.05.520
Protection of rights -- Staff.
The department
of social and health services shall have the responsibility to determine
whether all rights of individuals recognized and guaranteed by the provisions
of this chapter and the Constitutions of the state of
RCW 71.05.525
Transfer of person committed to juvenile correction institution to institution
or facility for mentally ill juveniles.
When, in
the judgment of the department, the welfare of any person committed to or confined
in any state juvenile correctional institution or facility necessitates that
such a person be transferred or moved for observation, diagnosis or treatment
to any state institution or facility for the care of mentally ill juveniles the
secretary, or his or her designee, is authorized to order and effect such move
or transfer: PROVIDED, HOWEVER, That the secretary shall adopt and implement
procedures to assure that persons so transferred shall, while detained or
confined in such institution or facility for the care of mentally ill
juveniles, be provided with substantially similar opportunities for parole or
early release evaluation and determination as persons detained or confined in
state juvenile correctional institutions or facilities: PROVIDED, FURTHER, That
the secretary shall notify the original committing court of such transfer.
RCW 71.05.530
Facilities part of comprehensive mental health program.
Evaluation
and treatment facilities authorized pursuant to this chapter may be part of the
comprehensive community mental health services program conducted in counties
pursuant to chapter 71.24 RCW, and may receive funding pursuant to the
provisions thereof.
RCW 71.05.550
Recognition of county financial necessities.
The
department of social and health services, in planning and providing funding to
counties pursuant to chapter 71.24 RCW, shall recognize the financial
necessities imposed upon counties by implementation of this chapter and shall
consider needs, if any, for additional community mental health services and
facilities and reduction in commitments to state hospitals for the mentally ill
accomplished by individual counties, in planning and providing such funding.
The state shall provide financial assistance to the counties to enable the counties
to meet all increased costs, if any, to the counties resulting from their
administration of the provisions of chapter 142, Laws of 1973 1st ex. sess.
RCW 71.05.560
Adoption of rules.
The
department shall adopt such rules as may be necessary to effectuate the intent
and purposes of this chapter, which shall include but not be limited to
evaluation of the quality of the program and facilities operating pursuant to
this chapter, evaluation of the effectiveness and cost effectiveness of such
programs and facilities, and procedures and standards for certification and
other action relevant to evaluation and treatment facilities.
RCW 71.05.570
Rules of court.
The supreme
court of the state of
RCW 71.05.575
Less restrictive alternative treatment -- Consideration by court.
(1) When
making a decision under this chapter whether to require a less restrictive
alternative treatment, the court shall consider whether it is appropriate to
include or exclude time spent in confinement when determining whether the
person has committed a recent overt act.
(2) When
determining whether an offender is a danger to himself or herself or others
under this chapter, a court shall give great weight to any evidence submitted
to the court regarding an offender's recent history of judicially required or
administratively ordered involuntary antipsychotic
medication while in confinement.
RCW 71.05.610
Treatment records -- Definitions.
As used in
this chapter or chapter 71.24 or 10.77 RCW, the following words and phrases
shall have the meanings indicated.
(1) "Registration records" include all the records of the department,
regional support networks, treatment facilities, and other persons providing
services to the department, county departments, or facilities which identify
individuals who are receiving or who at any time have received services for
mental illness.
(2) "Treatment records" include registration and all other records
concerning individuals who are receiving or who at any time have received
services for mental illness, which are maintained by the department, by
regional support networks and their staffs, and by treatment facilities.
Treatment records do not include notes or records maintained for personal use
by an individual providing treatment services for the department, regional
support networks, or a treatment facility if the notes or records are not
available to others.
RCW 71.05.620
Treatment records -- Informed consent for disclosure of information -- Court
files and records.
(1)
Informed consent for disclosure of information from court or treatment records
to an individual, agency, or organization must be in writing and must contain
the following information:
(a) The name of the individual, agency, or organization to which the disclosure
is to be made;
(b) The name of the individual whose treatment record is being disclosed;
(c) The purpose or need for the disclosure;
(d) The specific type of information to be disclosed;
(e) The time period during which the consent is effective;
(f) The date on which the consent is signed; and
(g) The signature of the individual or person legally authorized to give
consent for the individual.
(2) The
files and records of court proceedings under chapter 71.05 RCW shall be closed
but shall be accessible to any individual who is the subject of a petition and
to the individual's attorney, guardian ad litem, resource management services,
or service providers authorized to receive such information by resource
management services.
RCW 71.05.630
Treatment records -- Confidential -- Release.
(1) Except as
otherwise provided by law, all treatment records shall remain confidential.
Treatment records may be released only to the persons designated in this
section, or to other persons designated in an informed written consent of the
patient.
(2)
Treatment records of an individual may be released without informed written
consent in the following circumstances:
(a) To an individual, organization, or agency as necessary
for management or financial audits, or program monitoring and evaluation.
Information obtained under this subsection shall remain confidential and may
not be used in a manner that discloses the name or other identifying
information about the individual whose records are being released.
(b) To the department, the director of regional support
networks, or a qualified staff member designated by the director only when
necessary to be used for billing or collection purposes. The information shall
remain confidential.
(c) For purposes of research as permitted in chapter 42.48
RCW.
(d) Pursuant to lawful order of a court.
(e) To qualified staff members of the department, to the
director of regional support networks, to resource management services
responsible for serving a patient, or to service providers designated by
resource management services as necessary to determine the progress and
adequacy of treatment and to determine whether the person should be transferred
to a less restrictive or more appropriate treatment modality or facility. The
information shall remain confidential.
(f) Within the treatment facility where the patient is
receiving treatment, confidential information may be disclosed to individuals
employed, serving in bona fide training programs, or participating in
supervised volunteer programs, at the facility when it is necessary to perform
their duties.
(g) Within the department as necessary to coordinate
treatment for mental illness, developmental disabilities, alcoholism, or drug
abuse of individuals who are under the supervision of the department.
(h) To a licensed physician who has determined that the life
or health of the individual is in danger and that treatment without the
information contained in the treatment records could be injurious to the
patient's health. Disclosure shall be limited to the portions of the records
necessary to meet the medical emergency.
(i) To a facility that is to
receive an individual who is involuntarily committed under chapter 71.05 RCW,
or upon transfer of the individual from one treatment facility to another. The
release of records under this subsection shall be limited to the treatment
records required by law, a record or summary of all somatic treatments, and a
discharge summary. The discharge summary may include a statement of the
patient's problem, the treatment goals, the type of treatment which has been
provided, and recommendation for future treatment, but may not include the
patient's complete treatment record.
(j) Notwithstanding the provisions of RCW 71.05.390(7), to a
correctional facility or a corrections officer who is responsible for the supervision
of an individual who is receiving inpatient or outpatient evaluation or
treatment. Except as provided in RCW 71.05.445 and 71.34.225, release of
records under this section is limited to:
(i) An evaluation report provided
pursuant to a written supervision plan.
(ii) The discharge summary, including a record or summary of
all somatic treatments, at the termination of any treatment provided as part of
the supervision plan.
(iii) When an individual is returned from a treatment
facility to a correctional facility, the information provided under (j)(iv) of this subsection.
(iv) Any information necessary to establish or implement
changes in the individual's treatment plan or the level or kind of supervision
as determined by resource management services. In cases involving a person
transferred back to a correctional facility, disclosure shall be made to
clinical staff only.
(k) To the individual's counsel or guardian ad litem,
without modification, at any time in order to prepare for involuntary
commitment or recommitment proceedings, reexaminations, appeals, or other
actions relating to detention, admission, commitment, or patient's rights under
chapter 71.05 RCW.
(l) To staff members of the protection and advocacy agency
or to staff members of a private, nonprofit corporation for the purpose of
protecting and advocating the rights of persons with mental illness or
developmental disabilities. Resource management services may limit the release
of information to the name, birthdate, and county of
residence of the patient, information regarding whether the patient was
voluntarily admitted, or involuntarily committed, the
date and place of admission, placement, or commitment, the name and address of
a guardian of the patient, and the date and place of the guardian's
appointment. Any staff member who wishes to obtain additional information shall
notify the patient's resource management services in writing of the request and
of the resource management services' right to object. The staff member shall
send the notice by mail to the guardian's address. If the guardian does not
object in writing within fifteen days after the notice is mailed, the staff
member may obtain the additional information. If the guardian objects in writing within fifteen days after the notice is mailed,
the staff member may not obtain the additional information.
(3)
Whenever federal law or federal regulations restrict the release of information
contained in the treatment records of any patient who receives treatment for
alcoholism or drug dependency, the department may restrict the release of the
information as necessary to comply with federal law and regulations.
RCW 71.05.640
Treatment records -- Access procedures.
(1)
Procedures shall be established by resource management services to provide reasonable
and timely access to individual treatment records. However, access may not be
denied at any time to records of all medications and somatic treatments
received by the individual.
(2) Following
discharge, the individual shall have a right to a complete record of all
medications and somatic treatments prescribed during evaluation, admission, or
commitment and to a copy of the discharge summary prepared at the time of his
or her discharge. A reasonable and uniform charge for reproduction may be
assessed.
(3)
Treatment records may be modified prior to inspection to protect the
confidentiality of other patients or the names of any other persons referred to
in the record who gave information on the condition that his or her identity remain confidential. Entire documents may not be
withheld to protect such confidentiality.
(4) At the
time of discharge all individuals shall be informed by resource management
services of their rights as provided in RCW 71.05.610 through 71.05.690.
RCW 71.05.650
Treatment records -- Notation of and access to released data.
Each time
written information is released from a treatment record, the record's custodian
shall make a notation in the record including the following: The name of the
person to whom the information was released; the identification of the
information released; the purpose of the release; and the date of the release.
The patient shall have access to this release data.
RCW 71.05.660
Treatment records -- Privileged communications unaffected.
Nothing in
chapter 205, Laws of 1989 shall be construed to interfere with communications
between physicians or psychologists and patients and attorneys and clients.
RCW 71.05.670
Treatment records -- Violations -- Civil action.
Except as
provided in RCW 4.24.550, any person, including the state or any political
subdivision of the state, violating RCW 71.05.610 through 71.05.690 shall be
subject to the provisions of RCW 71.05.440.
RCW 71.05.680
Treatment records -- Access under false pretenses, penalty.
Any person
who requests or obtains confidential information pursuant to RCW 71.05.610
through 71.05.690 under false pretenses shall be guilty of a gross misdemeanor.
RCW 71.05.690
Treatment records -- Rules.
The
department shall adopt rules to implement RCW 71.05.610 through 71.05.680.
RCW 71.05.900
Severability -- 1973 1st ex.s.
c 142.
If any
provision of this 1973 amendatory act, or its
application to any person or circumstance is held invalid, the remainder of
this act, or the application of the provision to other persons or circumstances
is not affected.
RCW 71.05.940
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.
general
resources | legal resources | medical
resources | briefing papers | state activity
hospital closures | preventable
tragedies | press room | search
| home
Treatment Advocacy
CenterThe contents of TAC's website are copyrighted by the Treatment Advocacy Center unless otherwise indicated. All rights reserved and content may be reproduced, downloaded, disseminated, or transferred, for single use, or by nonprofit organizations for educational purposes only, if correct attribution is made. TAC is an I.R.C. § 501(c)(3) tax-exempt corporation. Donations are appreciated and are eligible for the charitable contribution deduction under the provisions of I.R.C. § 170. Please note that TAC does not accept funding from pharmaceutical companies or entities involved in the sale, marketing, or distribution of such products.
703 294 6001/6002 (phone) | 703 294 6010 (fax) | www.treatmentadvocacycenter.org (website)
info@treatmentadvocacycenter.org (general email) | press@treatmentadvocacycenter.org (press contact)
webmaster@treatmentadvocacycenter.org (webmaster)