RCW ch. 10.77 — Revised Code of Washington Chapter 10.77 RCW — Criminally Insane—Procedures

RCW 10.77.010 Definitions. (Effective until June 30, 2027.) As used in this chapter: (1) "Admission" means acceptance based on medical necessity, of a person as a patient. (2) "Authority" means the Washington state health care authority. (3) "Clinical intervention specialist" means a licensed professional with prescribing authority who is employed by or contracted with the department to provide direct services, enhanced oversight and monitoring of the behavioral health status of in-custody defendants who have been referred for evaluation or restoration services related to competency to stand trial and who coordinate treatment options with forensic navigators, the department, and jail health services. (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) "Community behavioral health agency" has the same meaning as "licensed or certified behavioral health agency" defined in RCW 71.24.025. (6) "Conditional release" means modification of a court-ordered commitment, which may be revoked upon violation of any of its terms. (7) A "criminally insane" person means any person who has been acquitted of a crime charged by reason of insanity, and thereupon found to be a substantial danger to other persons or to present a substantial likelihood of committing criminal acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions. (8) "Department" means the state department of social and health services. (9) "Designated crisis responder" has the same meaning as provided in RCW 71.05.020. (10) "Detention" or "detain" means the lawful confinement of a person, under the provisions of this chapter, pending evaluation. (11) "Developmental disabilities professional" means a person who has specialized training and experience in directly treating or working with persons with developmental disabilities and is a psychiatrist or psychologist, or a social worker, and such other developmental disabilities professionals as may be defined by rules adopted by the secretary. (12) "Developmental disability" means the condition as defined in RCW 71A.10.020. (13) "Discharge" means the termination of hospital medical authority. The commitment may remain in place, be terminated, or be amended by court order. (14) "Furlough" means an authorized leave of absence for a resident of a state institution operated by the department designated for the custody, care, and treatment of the criminally insane, consistent with an order of conditional release from the court under this chapter, without any requirement that the resident be accompanied by, or be in the custody of, any law enforcement or institutional staff, while on such unescorted leave. (15) "Genuine doubt as to competency" means that there is reasonable cause to believe, based upon actual interactions with or observations of the defendant or information provided by counsel, that a defendant is incompetent to stand trial. (16) "Habilitative services" means those services provided by program personnel to assist persons in acquiring and maintaining life skills and in raising their levels of physical, mental, social, and vocational functioning. Habilitative services include education, training for employment, and therapy. The habilitative process shall be undertaken with recognition of the risk to the public safety presented by the person being assisted as manifested by prior charged criminal conduct. (17) "History of one or more violent acts" means violent acts committed during: (a) The 10-year period of time prior to the filing of criminal charges; plus (b) the amount of time equal to time spent during the 10-year period in a mental health facility or in confinement as a result of a criminal conviction. (18) "Immediate family member" means a spouse, child, stepchild, parent, stepparent, grandparent, sibling, or domestic partner. (19) "Incompetency" means a person lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect. (20) "Indigent" means any person who is indigent as defined in RCW 10.101.010, or financially unable to obtain counsel or other necessary expert or professional services without causing substantial hardship to the person or his or her family. (21) "Individualized service plan" means a plan prepared by a developmental disabilities professional with other professionals as a team, for an individual with developmental disabilities, which shall state: (a) The nature of the person's specific problems, prior charged criminal behavior, and habilitation needs; (b) The conditions and strategies necessary to achieve the purposes of habilitation; (c) The intermediate and long-range goals of the habilitation program, with a projected timetable for the attainment; (d) The rationale for using this plan of habilitation to achieve those intermediate and long-range goals; (e) The staff responsible for carrying out the plan; (f) Where relevant in light of past criminal behavior and due consideration for public safety, the criteria for proposed movement to less-restrictive settings, criteria for proposed eventual release, and a projected possible date for release; and (g) The type of residence immediately anticipated for the person and possible future types of residences. (22) "Professional person" means: (a) A psychiatrist licensed as a physician and surgeon in this state who has, in addition, completed three years of graduate training in psychiatry in a program approved by the American medical association or the American osteopathic association and is certified or eligible to be certified by the American board of psychiatry and neurology or the American osteopathic board of neurology and psychiatry; (b) A psychologist licensed as a psychologist pursuant to chapter 18.83 RCW; (c) A psychiatric advanced registered nurse practitioner, as defined in RCW 71.05.020; or (d) A social worker with a master's or further advanced degree from a social work educational program accredited and approved as provided in RCW 18.320.010. (23) "Release" means legal termination of the court-ordered commitment under the provisions of this chapter. (24) "Secretary" means the secretary of the department of social and health services or his or her designee. (25) "Treatment" means any currently standardized medical or mental health procedure including medication. (26) "Treatment records" include registration and all other records concerning persons who are receiving or who at any time have received services for mental illness, which are maintained by the department, by behavioral health administrative services organizations and their staffs, by managed care organizations and their staffs, and by treatment facilities. Treatment records do not include notes or records maintained for personal use by a person providing treatment services for the department, behavioral health administrative services organizations, managed care organizations, or a treatment facility if the notes or records are not available to others. (27) "Violent act" means behavior that: (a)(i) Resulted in; (ii) if completed as intended would have resulted in; or (iii) was threatened to be carried out by a person who had the intent and opportunity to carry out the threat and would have resulted in, homicide, nonfatal injuries, or substantial damage to property; or (b) recklessly creates an immediate risk of serious physical injury to another person. As used in this subsection, "nonfatal injuries" means physical pain or injury, illness, or an impairment of physical condition. "Nonfatal injuries" shall be construed to be consistent with the definition of "bodily injury," as defined in RCW 9A.04.110. [ 2023 c 453 s 2; 2023 c 120 s 5. Prior: 2022 c 288 s 1; prior: 2021 c 263 s 9; 2019 c 325 s 5005; 2016 sp.s. c 29 s 405; 2014 c 225 s 58; 2011 c 89 s 4; 2010 c 262 s 2; 2005 c 504 s 106; 2004 c 157 s 2; 2000 c 94 s 12; prior: 1999 c 143 s 49; 1999 c 13 s 2; 1998 c 297 s 29; 1993 c 31 s 4; 1989 c 420 s 3; 1983 c 122 s 1; 1974 ex.s. c 198 s 1; 1973 1st ex.s. c 117 s 1.] NOTES: Reviser's note: RCW 10.77.103 Rights of person under this chapter. (1) At any and all stages of the proceedings pursuant to this chapter, any person subject to the provisions of this chapter shall be entitled to the assistance of counsel, and if the person is indigent the court shall appoint counsel to assist him or her. Prior to acquittal by reason of insanity under this chapter, the court shall appoint counsel administered by the county where the criminal charges are filed. At the time an indigent individual is acquitted by reason of insanity and is committed to state psychiatric care, the court shall immediately notify the Washington state office of public defense of the need for representation during the term of commitment. The office of public defense shall provide counsel to represent the person throughout the term of commitment, including during any period of conditional release, until legal termination of commitment and final unconditional release, as provided in chapter 2.70 RCW. (2) A person may waive his or her right to counsel; but such waiver shall only be effective if a court makes a specific finding that he or she is or was competent to so waive. In making such findings, the court shall be guided but not limited by the following standards: Whether the person attempting to waive the assistance of counsel, does so understanding: (a) The nature of the charges; (b) The statutory offense included within them; (c) The range of allowable punishments thereunder; (d) Possible defenses to the charges and circumstances in mitigation thereof; and (e) All other facts essential to a broad understanding of the whole matter. (3) Whenever any person is subjected to an examination pursuant to any provision of this chapter, he or she may retain an expert or professional person to perform an examination in his or her behalf. In the case of a person who is indigent, the court shall upon his or her request assist the person in obtaining an expert or professional person to perform an examination or participate in the hearing on his or her behalf. An expert or professional person obtained by an indigent person pursuant to the provisions of this chapter shall be compensated for his or her services out of funds of the department, in an amount determined by the secretary to be fair and reasonable, except that an expert or professional person obtained by a person who is committed following acquittal by reason of insanity and committed to state psychiatric care shall be compensated out of funds of the office of public defense as provided in policies and procedures under chapter 2.70 RCW, in a manner consistent with the rules of professional conduct and the standards for indigent defense. (4) Any time the defendant is being examined by court appointed experts or professional persons pursuant to the provisions of this chapter, the defendant shall be entitled to have his or her attorney present. (5) In a competency evaluation conducted under this chapter, the defendant may refuse to answer any question if he or she believes his or her answers may tend to incriminate him or her or form links leading to evidence of an incriminating nature. (6) In a sanity evaluation conducted under this chapter, if a defendant refuses to answer questions or to participate in an examination conducted in response to the defendant's assertion of an insanity defense, the court shall exclude from evidence at trial any testimony or evidence from any expert or professional person obtained or retained by the defendant. [ 2023 c 120 s 6; 2006 c 109 s 1; 1998 c 297 s 30; 1993 c 31 s 5; 1974 ex.s. c 198 s 2; 1973 1st ex.s. c 117 s 2. Formerly RCW 10.77.020.] NOTES: Intent— RCW 10.77.106 Eligible for commitment regardless of cause. When a designated crisis responder or a professional person has determined that a person has a mental disorder, and is otherwise committable, the cause of the person's mental disorder shall not make the person ineligible for commitment under chapter 71.05 RCW. [ 2016 sp.s. c 29 s 407; 2004 c 166 s 3. Formerly RCW 10.77.027.] NOTES: Effective dates— RCW 10.77.109 Medication—When substitution permitted. (1) When an individual has a prescription for an antipsychotic, antidepressant, antiepileptic, or other drug prescribed to the individual to treat a serious mental illness by a state hospital or other state facility or a behavioral health agency or other certified medical provider, and the individual is medically stable on the drug, a jail or juvenile detention facility shall continue prescribing the prescribed drug and may not require the substitution of a different drug in a given therapeutic class, except under the following circumstances: (a) The substitution is for a generic version of a name brand drug and the generic version is chemically identical to the name brand drug; or (b) The drug cannot be prescribed for reasons of drug recall or removal from the market, or medical evidence indicating no therapeutic effect of the drug. (2) This section includes but is not limited to situations in which the individual returns to a jail or juvenile detention facility directly after undergoing treatment at a state hospital, behavioral health agency, outpatient competency restoration program, or prison. (3) The department shall establish a program to reimburse jails and juvenile detention facilities for the costs of any drugs the jail or juvenile detention facility does not otherwise have available and must continue prescribing under this section. [ 2023 c 453 s 12. Formerly RCW 10.77.0942.] NOTES: Findings— RCW 10.77.113 Findings—Developmental disabilities. The legislature finds that among those persons who endanger the safety of others by committing crimes are a small number of persons with developmental disabilities. While their conduct is not typical of the vast majority of persons with developmental disabilities who are responsible citizens, for their own welfare and for the safety of others the state may need to exercise control over those few dangerous individuals who are developmentally disabled, have been charged with crimes that involve a threat to public safety or security, and have been found either incompetent to stand trial or not guilty by reason of insanity. The legislature finds, however, that the use of civil commitment procedures under chapter 71.05 RCW to effect state control over dangerous developmentally disabled persons has resulted in their commitment to institutions for the mentally ill. The legislature finds that existing programs in mental institutions may be inappropriate for persons who are developmentally disabled because the services provided in mental institutions are oriented to persons with mental illness, a condition not necessarily associated with developmental disabilities. Therefore, the legislature believes that, where appropriate, and subject to available funds, persons with developmental disabilities who have been charged with crimes that involve a threat to public safety or security and have been found incompetent to stand trial or not guilty by reason of insanity should receive state services addressing their needs, that such services must be provided in conformance with an individual habilitation plan, and that their initial treatment should be separate and discrete from treatment for persons involved in any other treatment or habilitation program in a manner consistent with the needs of public safety. [ 1998 c 297 s 28; 1989 c 420 s 1. Formerly RCW 10.77.095, 10.77.005.] NOTES: Effective dates— RCW 10.77.116 Records and reports accompany defendant upon transfer. A copy of relevant records and reports as defined by the department, in consultation with the department of corrections, made pursuant to this chapter, and including relevant information necessary to meet the requirements of RCW 10.77.405(1) and 10.77.635, shall accompany the defendant upon transfer to a mental health facility or a correctional institution or facility. [ 2008 c 213 s 3; 2000 c 74 s 4; 1998 c 297 s 47. Formerly RCW 10.77.097.] NOTES: Severability— RCW 10.77.119 Right to adequate care and treatment—Records and reports. (1) Any person involuntarily detained, hospitalized, or committed pursuant to the provisions of this chapter shall have the right to adequate care and individualized treatment. The person who has custody of the patient or is in charge of treatment shall keep records detailing all medical, expert, and professional care and treatment received by a committed person, and shall keep copies of all reports of periodic examinations of the patient that have been filed with the secretary pursuant to this chapter. Except as provided in RCW 10.77.325 and 4.24.550 regarding the release of information concerning insane offenders who are acquitted of sex offenses and subsequently committed pursuant to this chapter, and disclosures of health care information as authorized under chapter 70.02 RCW, all records and reports made pursuant to this chapter, shall be made available only upon request, to the committed person, to his or her attorney, to his or her personal physician, to the supervising community corrections officer, to the prosecuting attorney, to the court, to the protection and advocacy agency, or other expert or professional persons who, upon proper showing, demonstrates a need for access to such records. All records and reports made pursuant to this chapter shall also be made available, upon request, to the department of corrections or the indeterminate sentence review board if the person was on parole, probation, or community supervision at the time of detention, hospitalization, or commitment or the person is subsequently convicted for the crime for which he or she was detained, hospitalized, or committed pursuant to this chapter. (2) All relevant records and reports as defined by the department in rule shall be made available, upon request, to criminal justice agencies as defined in RCW 10.97.030. [ 2020 c 81 s 1; 1998 c 297 s 45; 1993 c 31 s 12; 1990 c 3 s 108; 1989 c 420 s 12; 1983 c 196 s 3; 1973 1st ex.s. c 117 s 21. Formerly RCW 10.77.210.] NOTES: Effective dates— RCW 10.77.123 Appellate review. Either party may seek appellate review of the judgment of any hearing held pursuant to the provisions of this chapter. [ 1988 c 202 s 16; 1974 ex.s. c 198 s 18; 1973 1st ex.s. c 117 s 23. Formerly RCW 10.77.230.] NOTES: Rules of court: RCW 10.77.126 Existing rights not affected. Nothing in this chapter shall prohibit a person presently committed from exercising a right presently available to him or her for obtaining release from confinement, including the right to petition for a writ of habeas corpus. [ 1999 c 13 s 3; 1973 1st ex.s. c 117 s 24. Formerly RCW 10.77.240.] NOTES: Purpose— RCW 10.77.129 Responsibility for costs—Reimbursement. (1) Within amounts appropriated, the department shall be responsible for all costs relating to the evaluation and inpatient treatment of persons committed to it pursuant to any provisions of this chapter, and the logistical and supportive services pertaining thereto except as otherwise provided by law. Reimbursement may be obtained by the department pursuant to RCW 43.20B.330. (2) Within amounts appropriated, the authority shall be responsible for all costs relating to outpatient competency restoration programs. (3) The office of public defense shall be responsible for costs of public defense services, including defense expert and professional services, for indigent persons acquitted by reason of insanity throughout the term of their commitment to state psychiatric care, including during any period of conditional release, until legal termination of commitment and final unconditional release. [ 2023 c 120 s 14; 2022 c 288 s 6; 1987 c 75 s 1; 1985 c 245 s 1; 1973 1st ex.s. c 117 s 25. Formerly RCW 10.77.250.] NOTES: Intent— RCW 10.77.133 Capital grants. (1) The department shall coordinate with cities, counties, hospitals, and other public and private entities to identify locations that may be commissioned or renovated for use in treating clients committed to the department for competency evaluation, competency restoration, civil conversion, or treatment following acquittal by reason of insanity. (2) The department may provide capital grants to entities to accomplish the purposes described in subsection (1) of this section subject to provision of funding provided for this specific purpose. [ 2023 c 453 s 19. Formerly RCW 10.77.255.] NOTES: Findings— RCW 10.77.136 Violent act—Presumptions. (1) In determining whether a defendant has committed a violent act the court must: (a) Presume that a past conviction, guilty plea, or finding of not guilty by reason of insanity establishes the elements necessary for the crime charged; (b) Consider that the elements of a crime may not be sufficient in themselves to establish that the defendant committed a violent act; and (c) Presume that the facts underlying the elements, if unrebutted, are sufficient to establish that the defendant committed a violent act. (2) The presumptions in subsection (1) of this section are rebuttable. (3) In determining the facts underlying the elements of any crime under subsection (1) of this section, the court may consider information including, but not limited to, the following material relating to the crime: (a) Affidavits or declarations made under penalty of perjury; (b) Criminal history record information, as defined in chapter 10.97 RCW; and (c) Its own or certified copies of another court's records such as criminal complaints, certifications of probable cause to detain, dockets, and orders on judgment and sentencing. [ 2000 c 74 s 5. Formerly RCW 10.77.260.] NOTES: Severability— RCW 10.77.139 Independent public safety review panel—Members—Secretary to submit recommendation—Access to records—Support, rules—Report. (1) The secretary shall establish an independent public safety review panel for the purpose of advising the secretary and the courts with respect to persons who have been found not guilty by reason of insanity, or persons committed under the involuntary treatment act where the court has made a special finding under RCW 71.05.280(3)(b). The panel shall provide advice regarding all recommendations to the secretary, decisions by the secretary, or actions pending in court: (a) For a change in commitment status; (b) to allow furloughs or temporary leaves accompanied by staff; (c) not to seek further commitment terms under RCW 71.05.320; or (d) to permit movement about the grounds of the treatment facility, with or without the accompaniment of staff. (2) The members of the public safety review panel shall be appointed by the governor for a renewable term of three years and shall include the following: (a) A psychiatrist; (b) A licensed clinical psychologist; (c) A representative of the department of corrections; (d) A prosecutor or a representative of a prosecutor's association; (e) A representative of law enforcement or a law enforcement association; (f) A consumer and family advocate representative; and (g) A public defender or a representative of a defender's association. (3) Thirty days prior to issuing a recommendation for conditional release under RCW 10.77.550 or forty-five days prior to issuing a recommendation for release under RCW 10.77.595, the secretary shall submit its recommendation with the committed person's application and the department's risk assessment to the public safety review panel. The public safety review panel shall complete an independent assessment of the public safety risk entailed by the secretary's proposed conditional release recommendation or release recommendation and provide this assessment in writing to the secretary. The public safety review panel may, within funds appropriated for this purpose, request additional evaluations of the committed person. The public safety review panel may indicate whether it is in agreement with the secretary's recommendation, or whether it would issue a different recommendation. The secretary shall provide the panel's assessment when it is received along with any supporting documentation, including all previous reports of evaluations of the committed person in the person's hospital record, to the court, prosecutor in the county that ordered the person's commitment, and counsel for the committed person. (4) The secretary shall notify the public safety review panel at appropriate intervals concerning any changes in the commitment or custody status of persons found not guilty by reason of insanity, or persons committed under the involuntary treatment act where the court has made a special finding under RCW 71.05.280(3)(b). The panel shall have access, upon request, to a committed person's complete hospital record, and any other records deemed necessary by the public safety review panel. (5) The department shall provide administrative and financial support to the public safety review panel. The department, in consultation with the public safety review panel, may adopt rules to implement this section. (6) By December 1, 2014, the public safety review panel shall report to the appropriate legislative committees the following: (a) Whether the public safety review panel has observed a change in statewide consistency of evaluations and decisions concerning changes in the commitment status of persons found not guilty by reason of insanity; (b) Whether the public safety review panel should be given the authority to make release decisions and monitor release conditions; (c) Whether further changes in the law are necessary to enhance public safety when incompetency prevents operation of the criminal justice system and long-term commitment of the criminally insane; and (d) Any other issues the public safety review panel deems relevant. [ 2013 c 289 s 3; 2010 c 263 s 1. Formerly RCW 10.77.270.] NOTES: Findings— RCW 10.77.143 Data collection. The department shall collect data so that information can be retrieved based on unique individuals, their complete Washington criminal history and referrals for forensic services. [ 2023 c 453 s 18. Formerly RCW 10.77.275.] NOTES: Findings— RCW 10.77.146 Office of forensic mental health services. (1) In order to prioritize goals of accuracy, prompt service to the court, quality assurance, and integration with other services, an office of forensic mental health services is established within the department of social and health services. The office shall be led by a director who shall have responsibility for the following functions: (a) Coordination of all forensic evaluation services; (b) Responsibility for assuring appropriate training of forensic evaluators; (c) Development of a system to certify forensic evaluators, and to monitor the quality of forensic evaluation reports; (d) Liaison with courts, jails, and community mental health programs to ensure the proper coordination of care, flow of information, and transition to community services, when applicable; (e) Coordination with state hospitals to identify and develop best practice interventions and curricula for services relevant to forensic patients; (f) Coordination with the authority, managed care organizations, behavioral health administrative services organizations, community behavioral health agencies, and the department of corrections regarding community treatment and monitoring of persons on conditional release; (g) Participation in statewide forensic data collection, analysis, and appropriate dissemination of data trends; (h) Provide data-based recommendations for system changes and improvements; and (i) Oversight of the development, implementation, and maintenance of community forensic programs and services. (2) The office of forensic mental health services must have a clearly delineated budget separate from the overall budget for state hospital services. [ 2019 c 325 s 5033; 2015 1st sp.s. c 7 s 10. Formerly RCW 10.77.280.] NOTES: Effective date— RCW 10.77.149 Immunity from liability—Detaining a person for medical clearance or treatment. 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 the state, a unit of local government, an evaluation and treatment facility, a secure withdrawal management and stabilization facility, or an approved substance use disorder treatment program shall be civilly or criminally liable for performing duties pursuant to this chapter with regard to the decision of whether to detain a person for medical clearance or treatment, provided that such duties were performed in good faith and without gross negligence. [ 2022 c 288 s 7. Formerly RCW 10.77.300.] RCW 10.77.215 Authorization to leave facility where person is confined prohibited—Exceptions—Approval by secretary—Notification to county or city law enforcement agency. (1) No person committed to the custody of the department for the determination of competency to stand trial under RCW 10.77.400, the restoration of competency for trial under RCW 10.77.635, 10.77.645, or 10.77.650, or following an acquittal by reason of insanity shall be authorized to leave the facility where the person is confined, except in the following circumstances: (a) In accordance with conditional release or furlough authorized by a court; (b) For necessary medical or legal proceedings not available in the facility where the person is confined; (c) For visits to the bedside of a member of the person's immediate family who is seriously ill; or (d) For attendance at the funeral of a member of the person's immediate family. (2) Unless ordered otherwise by a court, no leave under subsection (1) of this section shall be authorized unless the person who is the subject of the authorization is escorted by a person approved by the secretary. During the authorized leave, the person approved by the secretary must be in visual or auditory contact at all times with the person on authorized leave. (3) Prior to the authorization of any leave under subsection (1) of this section, the secretary must give notification to any county or city law enforcement agency having jurisdiction in the location of the leave destination. [ 2010 c 262 s 1. Formerly RCW 10.77.145.] RCW 10.77.225 Furlough—Notice—Temporary restraining order. (1) Before a person committed under this chapter is permitted temporarily to leave a treatment facility for any period of time without constant accompaniment by facility staff, the superintendent, professional person in charge of a treatment facility, or his or her professional designee shall in writing notify the prosecuting attorney of any county to which the person is released and the prosecuting attorney of the county in which the criminal charges against the committed person were dismissed, of the decision conditionally to release the person. The notice shall be provided at least forty-five days before the anticipated release and shall describe the conditions under which the release is to occur. (2) In addition to the notice required by subsection (1) of this section, the superintendent of each state institution designated for the custody, care, and treatment of persons committed under this chapter shall notify appropriate law enforcement agencies through the state patrol communications network of the furloughs of persons committed under RCW 10.77.645 or 10.77.530. Notification shall be made at least thirty days before the furlough, and shall include the name of the person, the place to which the person has permission to go, and the dates and times during which the person will be on furlough. (3) Upon receiving notice that a person committed under this chapter is being temporarily released under subsection (1) of this section, the prosecuting attorney may seek a temporary restraining order to prevent the release of the person on the grounds that the person is dangerous to self or others. (4) The notice requirements contained in this section shall not apply to emergency medical furloughs. (5) The existence of the notice requirements contained in this section shall not require any extension of the release date in the event the release plan changes after notification. (6) The notice provisions of this section are in addition to those provided in RCW 10.77.325. [ 2008 c 213 s 4; 1994 c 129 s 4; 1990 c 3 s 106; 1989 c 420 s 9; 1983 c 122 s 2. Formerly RCW 10.77.163.] NOTES: Findings— RCW 10.77.315 Escape or disappearance—Notification requirements. (1) In the event of an escape by a person committed under this chapter from a state facility or the disappearance of such a person on conditional release or other authorized absence, the superintendent shall provide notification of the person's escape or disappearance for the public's safety or to assist in the apprehension of the person. (a) The superintendent shall notify: (i) State and local law enforcement officers located in the city and county where the person escaped and in the city and county which had jurisdiction of the person on the date of the applicable offense; (ii) Other appropriate governmental agencies; (iii) The person's attorney of record; and (iv) The person's relatives. (b) The superintendent shall provide the same notification as required by (a) of this subsection to the following, if such notice has been requested in writing about a specific person committed under this chapter: (i) The victim of the crime for which the person was convicted or the victim's next of kin if the crime was a homicide; (ii) Any witnesses who testified against the person in any court proceedings if the person was charged with a violent offense; and (iii) Any other appropriate persons. (2) Information regarding victims, next of kin, or witnesses requesting the notice, information regarding any other person specified in writing by the prosecuting attorney to receive the notice, and the notice are confidential and shall not be available to the person committed under this chapter. (3) The notice provisions of this section are in addition to those provided in RCW 10.77.325. [ 2023 c 120 s 9; 2011 c 305 s 6; 2010 c 28 s 1; 1993 c 31 s 8; 1990 c 3 s 107; 1989 c 420 s 10; 1983 c 122 s 3. Formerly RCW 10.77.165.] NOTES: Intent— RCW 10.77.325 Sexual or violent offenders—Notice of release, escape, etc.—Definitions. (1)(a) At the earliest possible date, and in no event later than 30 days before conditional release, release, authorized furlough pursuant to RCW 10.77.225, or transfer to a less-restrictive facility than a state mental hospital, the superintendent shall send written notice of the conditional release, release, authorized furlough, or transfer of a person who has been found not guilty of a sex, violent, or felony harassment offense by reason of insanity and who is now in the custody of the department pursuant to this chapter, to the following: (i) The chief of police of the city, if any, in which the person will reside; and (ii) The sheriff of the county in which the person will reside. (b) The same notice as required by (a) of this subsection shall be sent to the following, if such notice has been requested in writing about a specific person committed under this chapter: (i) The victim of the crime for which the person was committed or the victim's next of kin if the crime was a homicide; (ii) Any witnesses who testified against the person in any court proceedings; and (iii) Any person specified in writing by the prosecuting attorney. Information regarding victims, next of kin, or witnesses requesting the notice, information regarding any other person specified in writing by the prosecuting attorney to receive the notice, and the notice are confidential and shall not be available to the person committed under this chapter. (c) In addition to the notice requirements of (a) and (b) of this subsection, the superintendent shall comply with RCW 10.77.225. (d) The 30-day notice requirement contained in (a) and (b) of this subsection shall not apply to emergency medical furloughs. (e) The existence of the notice requirements in (a) and (b) of this subsection shall not require any extension of the release date in the event the release plan changes after notification. (2) If a person who has been found not guilty of a sex, violent, or felony harassment offense by reason of insanity and who is committed under this chapter escapes, the superintendent shall immediately notify, by the most reasonable and expedient means available, the chief of police of the city and the sheriff of the county in which the person resided immediately before the person's arrest, and the person's attorney of record. If previously requested, the superintendent shall also notify the witnesses and the victim, if any, of the crime for which the person was committed or the victim's next of kin if the crime was a homicide. The superintendent shall also notify appropriate persons pursuant to RCW 10.77.315. If the person is recaptured, the secretary shall send notice to the persons designated in this subsection as soon as possible but in no event later than two working days after the department learns of such recapture. (3) If the victim, the victim's next of kin, or any witness is under the age of 16, the notice required by this section shall be sent to the parents or legal guardian of the child. (4) The department shall send the notices required by this chapter to the last address provided to the department by the requesting party. The requesting party shall furnish the department with a current address. (5) For purposes of this section the following terms have the following meanings: (a) "Violent offense" means a violent offense under RCW 9.94A.030; (b) "Sex offense" means a sex offense under RCW 9.94A.030; (c) "Next of kin" means a person's spouse, state registered domestic partner, parents, siblings, and children; (d) "Authorized furlough" means a furlough granted after compliance with RCW 10.77.225; (e) "Felony harassment offense" means a crime of harassment as defined in RCW 9A.46.060 that is a felony. [ 2023 c 120 s 13; 2009 c 521 s 27; 2000 c 94 s 17; 1994 c 129 s 5; 1992 c 186 s 8; 1990 c 3 s 104. Formerly RCW 10.77.205.] NOTES: Intent— RCW 10.77.335 Persons acquitted of sex offense due to insanity—Release of information authorized. In addition to any other information required to be released under this chapter, the department is authorized, pursuant to RCW 4.24.550, to release relevant information necessary to protect the public concerning a person who was acquitted of a sex offense as defined in RCW 9.94A.030 due to insanity and was subsequently committed to the department pursuant to this chapter. [ 1990 c 3 s 105. Formerly RCW 10.77.207.] NOTES: RCW 10.77.400 Plea of not guilty due to insanity—Doubt as to competency—Evaluation—Bail—Report—Competency to stand trial status check. (1)(a) Whenever a defendant has pleaded not guilty by reason of insanity, the court on its own motion or on the motion of any party shall either appoint or request the secretary to designate a qualified expert or professional person, who shall be approved by the prosecuting attorney, to evaluate and report upon the mental condition of the defendant. (b)(i) Whenever there is a doubt as to competency, the court on its own motion or on the motion of any party shall first review the allegations of incompetency. The court shall make a determination of whether sufficient facts have been provided to form a genuine doubt as to competency based on information provided by counsel, judicial colloquy, or direct observation of the defendant. If a genuine doubt as to competency exists, the court shall either appoint or request the secretary to designate a qualified expert or professional person, who shall be approved by the prosecuting attorney, to evaluate and report upon the mental condition of the defendant. (ii) Nothing in this subsection (1)(b) is intended to require a waiver of attorney-client privilege. Defense counsel may meet the requirements under this subsection (1)(b) by filing a declaration stating that they have reason to believe that a competency evaluation is necessary, and stating the basis on which the defendant is believed to be incompetent. (c) The signed order of the court shall serve as authority for the evaluator to be given access to all records held by any mental health, medical, long-term services or supports, educational, or correctional facility that relate to the present or past mental, emotional, or physical condition of the defendant. If the court is advised by any party that the defendant may have a developmental disability, the evaluation must be performed by a developmental disabilities professional and the evaluator shall have access to records of the developmental disabilities administration of the department. If the court is advised by any party that the defendant may have dementia or another relevant neurocognitive disorder, the evaluator shall have access to records of the aging and long-term support administration of the department. (d) The evaluator shall assess the defendant in a jail, detention facility, in the community, or in court to determine whether a period of inpatient commitment will be necessary to complete an accurate evaluation. If inpatient commitment is needed, the signed order of the court shall serve as authority for the evaluator to request the jail or detention facility to transport the defendant to a hospital or secure mental health facility for a period of commitment not to exceed fifteen days from the time of admission to the facility. Otherwise, the evaluator shall complete the evaluation. (e) The court may commit the defendant for evaluation to a hospital or secure mental health facility without an assessment if: (i) The defendant is charged with murder in the first or second degree; (ii) the court finds that it is more likely than not that an evaluation in the jail will be inadequate to complete an accurate evaluation; or (iii) the court finds that an evaluation outside the jail setting is necessary for the health, safety, or welfare of the defendant. The court shall not order an initial inpatient evaluation for any purpose other than a competency evaluation. (f) The order shall indicate whether, in the event the defendant is committed to a hospital or secure mental health facility for evaluation, all parties agree to waive the presence of the defendant or to the defendant's remote participation at a subsequent competency hearing or presentation of an agreed order if the recommendation of the evaluator is for continuation of the stay of criminal proceedings, or if the opinion of the evaluator is that the defendant remains incompetent and there is no remaining restoration period, and the hearing is held prior to the expiration of the authorized commitment period. (g) When a defendant is ordered to be evaluated under this subsection (1), or when a party or the court determines at first appearance that an order for evaluation under this subsection will be requested or ordered if charges are pursued, the court may delay granting bail until the defendant has been evaluated for competency or sanity and appears before the court. Following the evaluation, in determining bail the court shall consider: (i) Recommendations of the evaluator regarding the defendant's competency, sanity, or diminished capacity; (ii) whether the defendant has a recent history of one or more violent acts; (iii) whether the defendant has previously been acquitted by reason of insanity or found incompetent; (iv) whether it is reasonably likely the defendant will fail to appear for a future court hearing; and (v) whether the defendant is a threat to public safety. (h) If the defendant ordered to be evaluated under this subsection (1) is charged with a serious traffic offense under RCW 9.94A.030, or a felony version of a serious traffic offense, the prosecutor may make a motion to modify the defendant's conditions of release to include a condition prohibiting the defendant from driving during the pendency of the competency evaluation period. (2) The court may direct that a qualified expert or professional person retained by or appointed for the defendant be permitted to witness the evaluation authorized by subsection (1) of this section, and that the defendant shall have access to all information obtained by the court appointed experts or professional persons. The defendant's expert or professional person shall have the right to file his or her own report following the guidelines of subsection (3) of this section. If the defendant is indigent, the court shall upon the request of the defendant assist him or her in obtaining an expert or professional person. (3) The report of the evaluation shall include the following: (a) A description of the nature of the evaluation; (b) A diagnosis or description of the current mental status of the defendant; (c) If the defendant has a mental disease or defect, or has a developmental disability, an opinion as to competency; (d) If the defendant has indicated his or her intention to rely on the defense of insanity pursuant to RCW 10.77.505, and an evaluation and report by an expert or professional person has been provided concluding that the defendant was criminally insane at the time of the alleged offense, an opinion as to the defendant's sanity at the time of the act, and an opinion as to whether the defendant presents a substantial danger to other persons, or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions, provided that no opinion shall be rendered under this subsection (3)(d) unless the evaluator or court determines that the defendant is competent to stand trial; (e) When directed by the court, if an evaluation and report by an expert or professional person has been provided concluding that the defendant lacked the capacity at the time of the offense to form the mental state necessary to commit the charged offense, an opinion as to the capacity of the defendant to have a particular state of mind which is an element of the offense charged; (f) An opinion as to whether the defendant should be evaluated by a designated crisis responder under chapter 71.05 RCW. (4) The secretary may execute such agreements as appropriate and necessary to implement this section and may choose to designate more than one evaluator. (5) In the event that a person remains in jail more than 21 days after service on the department of a court order to transport the person to a facility designated by the department for inpatient competency restoration treatment, upon the request of any party and with notice to all parties, the department shall perform a competency to stand trial status check to determine if the circumstances of the person have changed such that the court should authorize an updated competency evaluation. The status update shall be provided to the parties and the court. Status updates may be provided at reasonable intervals. (6) If a finding of the competency evaluation under this section or under RCW 10.77.635 is that the individual is not competent due to an intellectual or developmental disability, dementia, or traumatic brain injury, the evaluator shall notify the department, which shall refer the individual to the developmental disabilities administration or the aging and long-term support administration of the department for review of eligibility for services. The department shall inform the forensic navigator about availability of services. (7) If the expert or professional person appointed to perform a competency evaluation in the community is not able to complete the evaluation after two attempts at scheduling with the defendant, the department shall submit a report to the court and parties and include a date and time for another evaluation which must be at least four weeks later. The court shall provide notice to the defendant of the date and time of the evaluation. If the defendant fails to appear at that appointment, the court shall recall the order for competency evaluation and may issue a warrant for the failure to appear. [ 2023 c 453 s 3; 2022 c 288 s 2; 2021 c 263 s 5; 2016 sp.s. c 29 s 408; 2012 c 256 s 3; 2004 c 9 s 1; 2000 c 74 s 1; 1998 c 297 s 34; 1989 c 420 s 4; 1974 ex.s. c 198 s 6; 1973 1st ex.s. c 117 s 6. Formerly RCW 10.77.060.] NOTES: Findings— RCW 10.77.405 Mental condition evaluations—Reports and recommendations required—Discharge of defendant when determined competent to stand trial. (1)(a)(i) The expert conducting the evaluation shall provide his or her report and recommendation to the court in which the criminal proceeding is pending. For a competency evaluation of a defendant who is released from custody, if the evaluation cannot be completed within twenty-one days due to a lack of cooperation by the defendant, the evaluator shall notify the court that he or she is unable to complete the evaluation because of such lack of cooperation. (ii) A copy of the report and recommendation shall be provided to the designated crisis responder, the prosecuting attorney, the defense attorney, and the professional person at the local correctional facility where the defendant is being held, or if there is no professional person, to the person designated under (a)(iv) of this subsection. Upon request, the evaluator shall also provide copies of any source documents relevant to the evaluation to the designated crisis responder. (iii) Any facility providing inpatient services related to competency shall discharge the defendant as soon as the facility determines that the defendant is competent to stand trial. Discharge shall not be postponed during the writing and distribution of the evaluation report. Distribution of an evaluation report by a facility providing inpatient services shall ordinarily be accomplished within two working days or less following the final evaluation of the defendant. If the defendant is discharged to the custody of a local correctional facility, the local correctional facility must continue the medication regimen prescribed by the facility, when clinically appropriate, unless the defendant refuses to cooperate with medication and an involuntary medication order by the court has not been entered. (iv) If there is no professional person at the local correctional facility, the local correctional facility shall designate a professional person as defined in RCW 71.05.020 or, in cooperation with the behavioral health administrative services organization, a professional person at the behavioral health administrative services organization to receive the report and recommendation. (v) Upon commencement of a defendant's evaluation in the local correctional facility, the local correctional facility must notify the evaluator of the name of the professional person, or person designated under (a)(iv) of this subsection, to receive the report and recommendation. (b) If the evaluator concludes, under RCW 10.77.400(3)(f), the person should be evaluated by a designated crisis responder under chapter 71.05 RCW, the court shall order such evaluation be conducted prior to release from confinement when the person is acquitted or convicted and sentenced to confinement for twenty-four months or less, or when charges are dismissed pursuant to a finding of incompetent to stand trial. (2) The designated crisis responder shall provide written notification within twenty-four hours of the results of the determination whether to commence proceedings under chapter 71.05 RCW. The notification shall be provided to the persons identified in subsection (1)(a) of this section. (3) The prosecuting attorney shall provide a copy of the results of any proceedings commenced by the designated crisis responder under subsection (2) of this section to the secretary. (4) A facility conducting a civil commitment evaluation under RCW 10.77.645(7) or 10.77.650(6)(b) that makes a determination to release the person instead of filing a civil commitment petition must provide written notice to the prosecutor and defense attorney at least twenty-four hours prior to release. The notice may be given by email, facsimile, or other means reasonably likely to communicate the information immediately. (5) The fact of admission and all information and records compiled, obtained, or maintained in the course of providing services under this chapter may also be disclosed to the courts solely to prevent the entry of any evaluation or treatment order that is inconsistent with any order entered under chapter 71.05 RCW. [ 2023 c 453 s 20; 2019 c 325 s 5006; 2016 sp.s. c 29 s 409; 2015 1st sp.s. c 7 s 16. Prior: 2014 c 225 s 59; 2014 c 10 s 3; 2013 c 214 s 1; 2012 c 256 s 4; 2008 c 213 s 1; 2000 c 74 s 2; 1998 c 297 s 35. Formerly RCW 10.77.065.] NOTES: Findings— RCW 10.77.410 Examination rights of defendant's expert or professional person. When the defendant wishes to be examined by a qualified expert or professional person of his or her own choice such examiner shall be permitted to have reasonable access to the defendant for the purpose of such examination, as well as to all relevant medical and psychological records and reports. [ 1998 c 297 s 36; 1973 1st ex.s. c 117 s 7. Formerly RCW 10.77.070.] NOTES: Effective dates— RCW 10.77.415 Experts or professional persons as witnesses. Subject to the rules of evidence, experts or professional persons who have reported pursuant to this chapter may be called as witnesses at any proceeding held pursuant to this chapter. Both the prosecution and the defendant may summon any other qualified expert or professional persons to testify. [ 1974 ex.s. c 198 s 9; 1973 1st ex.s. c 117 s 10. Formerly RCW 10.77.100.] RCW 10.77.500 Maximum term of commitment or treatment. (1) Whenever any person has been: (a) Committed to a correctional facility or inpatient treatment under any provision of this chapter; or (b) ordered to undergo alternative treatment following his or her acquittal by reason of insanity of a crime charged, such commitment or treatment cannot exceed the maximum possible penal sentence for any offense charged for which the person was committed, or was acquitted by reason of insanity. (2) Whenever any person committed under any provision of this chapter has not been released within seven days of the maximum possible penal sentence under subsection (1) of this section, and the professional person in charge of the facility believes that the person presents a likelihood of serious harm or is gravely disabled due to a mental disorder, the professional person shall, prior to the expiration of the maximum penal sentence, notify the appropriate designated crisis responder of the impending expiration and provide a copy of all relevant information regarding the person, including the likely release date and shall indicate why the person should not be released. (3) A designated crisis responder who receives notice and records under subsection (2) of this section shall, prior to the date of the expiration of the maximum sentence, determine whether to initiate proceedings under chapter 71.05 RCW. [ 2016 sp.s. c 29 s 406; 2000 c 94 s 13; 1998 c 297 s 31. Formerly RCW 10.77.025.] NOTES: Effective dates— RCW 10.77.505 Establishing insanity as a defense. (1) Evidence of insanity is not admissible unless the defendant, at the time of arraignment or within ten days thereafter or at such later time as the court may for good cause permit, files a written notice of his or her intent to rely on such a defense. (2) Insanity is a defense which the defendant must establish by a preponderance of the evidence. (3) No condition of mind proximately induced by the voluntary act of a person charged with a crime shall constitute insanity. [ 1998 c 297 s 32; 1974 ex.s. c 198 s 3; 1973 1st ex.s. c 117 s 3. Formerly RCW 10.77.030.] NOTES: Effective dates— RCW 10.77.510 Instructions to jury on special verdict. Whenever the issue of insanity is submitted to the jury, the court shall instruct the jury to return a special verdict in substantially the following form: answer yes or no 1. Did the defendant commit the act charged? . . . . . 2. If your answer to number 1 is yes, do you acquit him or her because of insanity existing at the time of the act charged? . . . . . 3. If your answer to number 2 is yes, is the defendant a substantial danger to other persons unless kept under further control by the court or other persons or institutions? . . . . . 4. If your answer to number 2 is yes, does the defendant present a substantial likelihood of committing criminal acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions? . . . . . 5. If your answers to either number 3 or number 4 is yes, is it in the best interests of the defendant and others that the defendant be placed in treatment that is less restrictive than detention in a state mental hospital? . . . . . [ 1998 c 297 s 33; 1974 ex.s. c 198 s 4; 1973 1st ex.s. c 117 s 4. Formerly RCW 10.77.040.] NOTES: Effective dates— RCW 10.77.515 Motion for acquittal on grounds of insanity—Hearing—Findings. The defendant may move the court for a judgment of acquittal on the grounds of insanity: PROVIDED, That a defendant so acquitted may not later contest the validity of his or her detention on the grounds that he or she did not commit the acts charged. At the hearing upon the motion the defendant shall have the burden of proving by a preponderance of the evidence that he or she was insane at the time of the offense or offenses with which he or she is charged. If the court finds that the defendant should be acquitted by reason of insanity, it shall enter specific findings in substantially the same form as set forth in RCW 10.77.510. If the motion is denied, the question may be submitted to the trier of fact in the same manner as other issues of fact. [ 1998 c 297 s 37; 1974 ex.s. c 198 s 7; 1973 1st ex.s. c 117 s 8. Formerly RCW 10.77.080.] NOTES: Effective dates— RCW 10.77.520 Placement—Secure facility—Treatment and rights—Custody—Reports. (1) If the secretary determines in writing that a person committed to the custody of the secretary for treatment as criminally insane presents an unreasonable safety risk which, based on behavior, clinical history, and facility security is not manageable in a state hospital setting, and the secretary has given consideration to reasonable alternatives that would be effective to manage the behavior, the secretary may place the person in any secure facility operated by the secretary or the secretary of the department of corrections. The secretary's written decision and reasoning must be documented in the patient's medical file. Any person affected by this provision shall receive appropriate mental health treatment governed by a formalized treatment plan targeted at mental health rehabilitation needs and shall be afforded his or her rights under RCW 10.77.545, 10.77.550, and 10.77.595. The secretary of the department of social and health services shall retain legal custody of any person placed under this section and review any placement outside of a department mental health hospital every three months, or sooner if warranted by the person's mental health status, t