 Good morning and welcome to Vermont House Judiciary Committee. It is Wednesday, March 31, and we are starting on S3, which is an act relating to competency to stand trial and insanity as a defense. As you can see, we have quite a few witnesses here today, and we won't get through everybody today. And I want to thank our committee assistant. Evan for working with with our witnesses to find out what your schedules are and your time constraints are and hopefully we are accommodating everybody. I also want to welcome Representative Mary Marcy of Bennington who serves on the Corrections and Institutions Committee. If you do the walkthrough, you'll see that this bill does touch on a number of committees jurisdictions and so I did ask Chair Ammons to have member of her committee sit in with us and so Representative Marcy I welcome you as a as a member of the committee this morning and please I don't know if I can, if you'd be able to do a hand icon but but please if you have a question, please jump jump in when I turn to committee members and, and the same thing with Representative and Donna you welcome I'm not sure if you are representing health care today or you are okay good because I also know that you have have a bill in our committee that is similar to this and so so you're wearing many hats. Um, but, but you two please, please consider yourself a committee member for this morning. So, thank, thank you. Yeah, sure. And in terms of the, the chat for folks who have not testified before. I like to use a chat more for logistics people who need to turn their screen off or we'll be right back or that type of thing but it's it's it's not a place for for discussion. You know in terms of discussion we'll take that from actual witness testimony live written whatever but but not not in the chat please that actually goes away. When, when we adjourn it's so it does not become part of the public record so really is important to stand on on the record please. We'll have a break about 10 o'clock or so, and then we do have a hard stop at 1145. So, here we, there we are. So, I will now turn to our legislative council I'm not sure who wants to go first or how are you going to do it so I'll turn it over to both of you and welcome Katie I'm not sure we've seen you this session so nice to see you. Nice to see you as well. So, however, whoever wants to go first go ahead for the walkthrough. Okay, thank you. Thank you representative grad. Thank you very much, Patrick with the Office of Legislative Council, along with Katie McClinn from the Office of Legislative Council as well. We're both here as you mentioned and the, as you mentioned the, we're talking to the committee this morning about Senate bill number three, which is an act relating to competency to stand trial and insanity as a defense. I can tell from the title of the bill that this is a subject area of the law that's dealing with basically a criminal defendants mental health status during the course of criminal proceedings. And as the chair mentioned, that's a topic that that crosses many committees subject matter so crosses criminal procedure healthcare matters mental health related issues. And so for that reason, Katie and I have divvied up the bills that I tend to cover more of the judiciary related criminal procedures and she covers more of the healthcare related matters so that's why we're both here and Katie wanted to add anything to that or sounds okay. That sounds great. Thank you. Awesome. So, so when we made divvy up question questions may come up about it's sort of more geared toward to judiciary related issues or more toward healthcare one so she and I may sort of decide how to respond based on what that what the question turns out to be. But for the most part, all, you know, the judiciary stuff tends to come in the front part of the bill and the healthcare stuff comes tends to come later on. So that's why I'm starting off. It just mine appears first chronologically in the bill. So, having said that, the, as you can imagine, with a bill that deals with criminal defense issues constitutional rights of defendant mental health care status of the defendant healthcare related issues. The, the as I when I often do a walkthrough is I'm sure committee members know, I'll often start with sort of a big picture before looking at the language of the bill sort of a general statement of the one bit of the, you know, the overall aspect of the bill. That's not really something that this bill is amenable to, because it deals with many different pieces of the procedures related to competency to stand trial, and the insanity defense it's not just one particular that area of the law is detailed. There's, there's lengthy and detailed statutes on the books in both title 13 criminal code and title 18, the healthcare law that all bear upon this issue. And what as three does is it makes a number of different changes to different parts of those statutes doesn't do any one particular thing. Not really, as I say, amenable to me saying well here's the big picture one thing that the bill does does a lot of different things related to these procedures. So, and the only way we're going to be able to see that really is to look at the text of the bill and describe what each particular proposed changes. One point I would make in the big picture sense before we do look at the text is that, although, although both, you know, sort of the unifying theme of what's going on in the bill is that it's making changes to the procedures that come up related to the mental health status of a defendant in a criminal proceeding. That's sort of the big picture of what's going on. And, and while the insanity defense and competence competence to stand trial, both certainly do deal with that they both feel very, you know, exactly with that the mental health status of a criminal defendant. The two things are very different. They're, they deal with different things and they have different consequences. So if you think about, first of all the insanity defense I just want to talk for a moment about so we have a bit of a grounding as to what these two things are. The insanity defense deals with the defendant's mental health status at the time the offense is committed. So that particular point in time, the mental health status at that time. And what, what the defense provides is that a person, if a person cannot either understand that his or her conduct is criminal. Or they can't conform their conduct to the requirements of the law. And if those things are happening as a result of a mental illness, then the person is not guilty by reason of insanity. So that's the gist of if, if as a result of a mental illness, either the person cannot understand that their conduct is criminal. Or even if they can understand it, they still can't conform their conduct to legal requirements. Again, specifically as a result of a mental illness, not for some other reason, then the person is not guilty by reason of insanity. And an important point to remember about that is that if you're found not guilty by reason of insanity, then it's a complete defense. In other words, you can't be charged with the crime ever again. It's a complete defense. And the, we think about that there's some logic to that because it's the idea is that a person at the time that committed the offense is incapable of forming the criminal intent that would be required ordinarily of a criminal defendant. So that's the way the insanity defense works. On the other hand, competency to stand trial deals with the mental health status of the defendant at the time of the trial, totally different point in time. Right. Nothing to do with the defendant's mental health status at the time the offense was committed only. The only inquiry is the time of the trial. And at that point, the person is either unable to understand the criminal charges against them, or sort of unable to participate, meaningfully in their own defense. So they either can't understand the nature of the charges or can't defend themselves. Then they would be deemed incompetent to stand trial. Again, very different consequence though. A person who is found incompetent to stand trial can regain competency later on in the future and still be charged with the offense. So you see the difference between the insanity defense that person is a complete defense that can never be charged again. On the other hand, competency has to do with whether you are sufficiently competent to participate in the trial. And that can change over time. The person can have treatment, for example, and regain competency and the prosecution in the first instance could always decide whether they want to keep the charges in place or dismiss the charges if a person is incompetent. They can always make that decision. But assuming that they've decided to maintain the charges against the defendant, they could be charged, you know, a year, two years, three years whenever the person regains competency after treatment later on. And that's kind of the basics of what these two proceedings are, these two ways that the defendant's mental health status can come up in a criminal case. As I say, they both deal with mental health status of defendant, but they're very different when they're proven and what their effects are. So with that as background, I would tend to move to, you know, the proceedings around these things, as I said, are very detailed. There's a lot of statutes about and what S3 does is it proposes a number of changes to these statutes. That's the way to look at that is to look at the bill. So unless you want me to pause for a moment. I just want to make sure that committee members understand the distinction and don't have any questions. I'm not seeing any hands and again, Representative Marcy, please feel free to jump in. Tom, go ahead. Thank you. I was a little confused. I don't know if anybody else was. So, if somebody, somebody commits a crime and in their found incompetent to stand trial but after say treatment or a period of time down the road they could be found competent to stand trial. Yes, that's exactly right. Huh. That's interesting. Okay. Thank you. I need to go see what my dog is. I'm sorry. Yes, so Eric. I guess I really don't understand that. If somebody is found incompetent. At the time that they committed the crime. That's the distinction represented verdict. They're not being found incompetent at the time they committed the crime. They're being found incompetent to stand trial. So that race that they still would have to have been been found. Not insane at the time of the offense certain. You know, that's, we'll get to sort of something in the bill that kind of goes into that sequence issue but remember the competency issue is only to do with how competent you are at the moment of the trial. But nothing to do with what happened at the offense. So presuming that a person was saying at the time of the offense, then, you know, if they're incompetent to stand trial, that can be ameliorated by treatment over time. Okay, yeah. Okay. So, so if they're found insane at the time of the of the crime, then they can't be tried. Okay, okay. Right. Right. That's, yeah, that's a big distinction right there. Okay, great. Thank you. And I'm sure thanks I, I guess I want to step back coming from the mental illness mental health perspective, and, and ask Eric to correct me if I'm wrong but I think a lot of times, people don't like using the words of the statute which talk about mental disease or defect, rather than just saying mental health status. But I think the distinction is really important because mental illness, apart from legal terminology is very different from the other kinds of mental status that come under this statute. So, when we just talk about mental health or mental illness, it's not including all of the other things that are covered under these statutes, developmental disability, traumatic brain injury, which are not mental illnesses. So, I think that's a really important thing to keep in the back of your mind because when you change one part of the statute and you don't change others you're enhancing the real discrepancies that are built into this statute which has been changed over time in bits and pieces but not as a comprehensive look at alignment. So, this new bill is an example of that because it's really only addressing the mental health, the actual mental illness components. But there are all these other components and whenever the references made to the mental health status of the defendant, it's actually any of the, any of the conditions that qualify under the statutory definition under the law as a mental disease and defect it's not just mental illness. Is that a fair description Eric? Yeah, I think so. Yeah. I guess I'm reacting a little bit again from the, you know, person with a mental illness perspective. We think of it only that way we're labeling one group of people when it's a legal concept that has to do with the ability to appreciate wrongfulness and so forth and which incorporates a lot of other conditions that might cause that status then mental illness and whether those procedures align I think is an important thing to keep in mind as you look at the changes that the Senate bill has. Thank you. Okay. Thanks. Thanks, Tom, for taking over. Okay. I'm not sure where I'm sorry I'm not sure where we were. Eric, you still know we were just still. Yeah, yeah, go ahead Eric. No, I'm just gonna say the same thing you were probably which is just that still entertaining questions on sort of the introductory piece and comments and still pausing to see if there's any more. But before we look at the text of the bill. Great. Thank you. Not saying anybody. Okay, great, go ahead. Thank you. Great. Okay, so I'm going to share share my screen now and we'll dive into the text and see the particular changes that are proposed by S3. Just a reminder for committee members when the when screen sharing of happening it's it's harder for me to see everybody's hands so committee members if I don't recognize you please please jump in and again that includes representatives down to you and Marcy. Okay, looks good Eric. Okay everybody see it okay. Yeah, thank you. Great. Yes, thank you. So this is S3 as passed by the Senate. As I say, the sections tend to deal with discrete parts of the proceedings that are involved in competency and the insanity defense so we'll take them one by one the first section deals with when when the question of a defendant's sanity or competency has been raised. Then the court is required to order a psychiatric examination of the defendant. The standard practice in these in these proceedings it's a requirement that the psychiatric examination be be conducted. The, as I just explained I remember from the explanation we were talking about the differences between competency and sanity at the time of the offense but it's really just a wording issue here. The way the statute is worded now you'll see that in the struck through language and subdivisions one and two. And that the that the psychiatric examination has to has to examine both competency and sanity. But, as I as we were just talking about the two things are different and it may well be that that competency is raised in a case, but not sanity, or vice versa. There's no real reason in terms of resources and and what's required in a given proceeding for the psychiatric examination to always evaluate both competency and sanity. So all this does is it just makes clear that the psychiatric examination can can involve evaluating one or both of the following everybody see that doesn't so it doesn't have to be both in every circumstance it could be competency, could be sanity, or it could be determining on the circumstances of the particular case. That's the first piece that you see in subsection a there. Just some technical matters and subsection C but another thing that's added here at the bottom of subsection C. You'll see is that after the examination is completed. So the existing language you see talks about who the report, the report of the from the psychiatric examination who it has to be transmitted to has to be given to the court states attorney, the defendant or respondents attorney if they're represented by council and this just adds the commissioner of health to that list so the commissioner of mental sorry the commissioner of mental health. And also would receive a copy of that report which will make sense, as you see from the rest of the language as we go through it since the department of mental health is very much involved in these proceedings as to not only with respect to the defendant, defendant status but where the defendant is going to be potentially committed for treatment so makes would make sense for the department to get a copy of that report. That's a good question. Eric did did the committee did the Senate committee at all discuss also including the commissioner of of gale develop of independent living and aging, because they have jurisdiction the paragraph just before references competency for a person within developmental disability, which is a psychologist evaluation, and the department of mental health the commissioner of mental health has no jurisdiction or involvement, if the person is not competent because of a developmental disability. Did they discuss, including Dale there. I don't and I always give a little qualifier to the to these responses because you know it's put, it's always potentially true that the committee discussed something when I wasn't there or that I missed it, but I don't recall them talking about that I maybe ask Katie as well, if she recalls it but I don't myself. I give the same disclaimer that I am often not in the room and I don't recall a conversation on that point. Do you have a note of it though for potential inclusion, does that make sense. Yes, please do yeah I've made a note of it. Thank you. Yeah, I guess I should say my comments because I don't think the note here really addresses the underlying problem with with with the way that the Senate address the overall issue. So, okay, well, that's that's an example. I guess that's an example of a. An example of a far deeper and broader issue with the with the laws that exist. Okay, right. Thank you. So I go to the next next subdivision. Yes. All right, so this now we're again still still talking about this issue of competency and and sanity being two different legal constructs. But this subdivision two deals with those cases where where issues regarding both the defendant's sanity and the defendant's competency have been raised and the psychiatrist or psychologist who's conducting the examination has been has in this case has been asked to provide an opinion as to each one. Remember saying that they might not might be there only asked to provide an opinion as to one or the other, but if they're asked to provide an opinion as to both as to each one. So what subdivision two does is says that that the that the sanity examination only has to be undertaken if defendant is first found competent to stand trial. If you think about that logically this kind of goes to what representative bird it was getting out with his question as well. So what I think is that if the defendant is is not competent to stand trial, then in some, you know, they're again they're sort of underlying logic to the fact that if the defendant is incompetent to stand trial then it isn't necessarily needed, or useful to understand whether the person was saying or not at the time of the offense, because if they're incompetent to stand trial then the trials not going to happen. It's going to, and it's only going to happen. It's at what at the point in time either when or if the person regains competence. And at that point, you may well want to do the psychiatric examination of a person's sanity at the time of the trial. But until that time until the trial actually happens, if it ever happens, there's no need to do it. So that's why I think this language provides that the examination of the person's sanity doesn't take place. It shall only be undertaken if you look at the language, if the psychiatrist or psychologist is able to form the opinion of the person is competent. Yeah, Bob. Oh, okay. Sorry, Tom. Yeah. Go ahead. No, go ahead. I didn't even put my hand up because. Well, yeah. Okay, so Bob and then Tom. Great. Thank you. Yeah, Eric, nothing is going to change anything here in the bill or whatever else but a lot of the things that we do and passes so on so forth are data driven. And I think data on how often a person's competency comes up in the state of Vermont versus a person's sanity and the outcomes of both of those very complex issues. I would, I would think that that the court would have that data. I don't have a question for the court, but I think it's certainly how frequently competency to stand trial and the insanity defense are raised would would likely be dated that the court could get. I don't have it myself handy. All right, thank you. Yeah. Yeah, Eric, I guess, if you could give me an example. So somebody commits a crime. At this point they're deemed not to be insane, but they're not competent to stand trial. I guess, if you could come up with a hypothetical or a scenario maybe that that that could happen. In my in my mind, I know they're not the same thing as far as insanity and incompetence but somewhere in my mind I'm looking at them as being the same or at least similar I guess. I think of the if I'm understanding your question correctly, just sort of think of it as a timeline, and a person, you know, could well be competent at the time that the person commits a crime. Yeah, but because but you know a trial, the length of time between a crime and a trial is frequently quite lengthy. So it could well well be during that interim period of time that the person either, you know, develops a conditioner mental illness or the person has had one before that was being treated at the time of the crime but isn't being treated for whatever reason, because you know that intervening time. The person could then become incompetent to stand trial and that since that decision is really focused on the time of trial. You know, it could well been that the person was perfectly fine at the time of the crime but because of intervening circumstances whatever they may be, they wouldn't be competent, you know, six years a year 18 months down the road whenever that was that the that the trial is coming for. Okay, great. Thank you. Yep. So, moving on to section two. So, again, I'm sorry, I see Kate's hand. Oh, sorry. Yep. Can you hear me? Sorry, off camera for a moment. Yes. I just had a question about that last section. It was on page two at the top page to number two. So that piece seems to be written, I guess I'm, it's written. Okay, if the psychiatrist or psychologist has been asked to provide opinions as to both the person's company, the blah, blah, blah, blah, blah. I'm trying to understand why. I think it's felt important to distinguish that the following things apply only in that particular situation. So like, like, why, why would we not instead say I'm not trying to get too much into the language of the bill but like why would we not instead just say, you know, opinions related to competency and the person sanity at the time of an alleged death shall be presented in separate reports. You know, examinations of a person's sanity will only be undertaken if a person is able to form the opinion that the person's competent, like, why would we make that specific to when a provider is doing an assessment on both at one time. Does that make sense? I don't know that that issue was discussed specifically some of the witnesses might have some thoughts on that the only thought that comes to mind for me is that is that if only one if you sort of think of it as there's two possibilities right one possibility is that that that the treatment, the treating psychiatrist or psychologist will be asked to provide both or one or the other. The only ask to provide one or the other, then, almost by definition it's going to be in a separate report, whereas the only sort of fact circumstance that might require some clarity about them being in separate reports is if they're required to conduct an examination of both. But again that's just off the top of my head as to why that distinction might be there I don't know that it was it was sort of hashed through in that kind of detail. Okay, so the second piece, and maybe this is then a question for other witnesses as it comes up but so the second piece of that paragraph where it talks about the examination of a person sanity shall only be undertaken as a psychiatrist or psychologist is able to form the opinion that the person is competent to stand trial. But is that not clarified in other parts of the statute like would again regardless of whether the reports were pursued at the same time. Is there another place in the law or is this the only place in the law where it clarifies that the person may pursue a sanity defensive it was determined the person was confident. I think this is the place that that's made clear. I don't think it's about the ability to pursue the defense. It's just about the examination. The, that the order of the examinations would only proceed in that way it's not saying that the, that the defendant can't pursue the defense. If the only only after having been found competent, I think as a logical matter that's probably the way we play out. But, but again I do think some of the, some of the folks who, who some of your witnesses who, who have a great deal of experience practicing in these proceedings and in a day to day basis might have some some good testimony for that question as well. Okay, thank you. Ken. Good morning. So, I was going to ask this before and then Tom asked it and I thought I had it answered and now I'm, I'm looking at paragraph two here. If a person that does something wrong is incompetent at that time. When they come to trial. And they found competent. They're still not going to be charged back at that crime. Because they were incompetent. Correct. So, could you, could you run through that, that one more time. I'm sorry about that represent gospel and I was lost me right in the middle there. I knew you're going to say that. If a person at the time of the crime, right was ruled incompetent. When it's time for them to stand trial for this crime and they're found competent. Can they be charged for that crime that they were found incompetent on before. Well, we have to be careful about the terminology here competency only is an issue at the time of trial. So, if they were found, however, at the time of the crime, if they were insane at the time of the crime. Then remember, they can never be charged that they won't be the trial will never happen because they couldn't form the criminal intent necessary to commit the crime in terms in terms of the law. So, if they, if their insanity defense is successful, and they're found insane at the time of the crime, then the trial will never happen. So, the competency issue only comes up with someone who is able to stand trial and therefore we step up to that point by definition is, I would say the person has not had a successful insanity defense. In other words, they weren't able to show that they were insane at the time of the defense, or it may never, they may never have raised it at all. Because of, I was talking about with respect to represent verdicts question, maybe it just wasn't an issue of the mental health status wasn't an issue at the time of the crime, but it becomes an issue later on. And that person, even if they're incompetent to stand trial at the time of the trial, could regain competence later on, and then be brought back into court for the criminal trial. That help a little bit. Yeah, I think I'm going to wait to hear from everybody and then ask questions. So it's please can please ask your questions along the way and yeah I'm thinking this might be a maybe a flowchart or something might be might be helpful. So, I guess where I'm going. I mean, I don't want to, I don't want to jump that the what what what I think this bill is trying to accomplish, but it's like if somebody when it comes time that they come to trial, and they're found put in. If that's a if that's a word. That's correct. That's the right word. Then it's basically making it so they have a second chance. I'm dealing with society and I'm going to use this as a term and it's probably wrong but we know I've never politically correct, but it's kind of like an expungement where you'll get like a second chance. I think the, the trial there's only one, there's only going to be one trial. And the question is, you know whether the person is competent at that time. I do that if the person is is found incompetent that they could still and then then they go through treatment and they're they regain competency. That's true that then they could come back to court and and have the trial at that time, but it's not really a second trial because it because they never had the first one because they were found incompetent at that time. I think I've got that what I'm saying, what I'm saying if a person goes to this trial and they're found competent. And then at that time, they could start, for lack of a better word, rebuilding their lives going through proper proper treatment and all that stuff. And they had had a moment or whatever but it's like they get in a second chance or something like that. That's what I'm trying to say. Yeah, I think I think that's fair, fair way to put it. Yeah. Yeah. And, and can I think the witnesses will help talk, you know, talk to that, that point is as well. Okay. Thank you. Okay, great. No, no other questions at the moment or not seeing them. I'm not hearing anybody. Yeah. So now we're moving on to section two deals, a further, you're further down the road in these proceedings now remember we were just talking about that once, once a person's defendants sanity or competency has been raised the court has to order a psychiatric evaluation. So now, this is further down the proceeding so so if, if the court does find that the person is either was either insane at the time of the offense, or incompetent to stand trial. So again, think of it sort of chronologically we're a little further down the road. The court has found in this, when we get to this statute that that the defendant was in, you know, insane at the time the offense or incompetent to stand trial. At that point, after that finding the court has to hold a hearing to determine what should happen to the person and to use a phrase that this committee has has heard many times over the years the question at that hearing is whether the person is a danger to self or others. So the court that's this section 4020 hearing regarding commit and that and the, and the dispositive question the crucial question in that hearing is, is the person a danger to sell for others. If the answer that question is yes. Then the person has to be committed to the Department of Mental Health for treatment. Everybody sort of understand that so far and so I'm sure remind folks of the way civil proceedings work as well the person to danger to sell for others than they're committed for treatment to the Department of Mental Health. Now currently, the way this criminal provision works is that the person's defense counsel their criminal defense attorney continue to represent them at that hearing at that commitment hearing. However, if you think that that commitment hearing is no longer a criminal proceeding. It's a proceeding about whether the person is a danger to self or others not whether they're guilty of a crime or not it's not a criminal determination it's whether they're a danger to self or others. And so what section two provides for is that in that hearing. The person is entitled to have counsel appointed from Vermont legal aid to represent the person this is the, the, the organization the body with the, with has significant experience representing persons who are in this position of having to determine danger to self or others. And as a practical matter Vermont legal aid has been involved in these proceedings sometimes in any event, but this formalizes it and makes it a right that the defendant has now I say, you see the language shall be entitled to have counsel appointed from Vermont legal aid. That doesn't mean the person is required to the person if they have, for example, a private attorney, private counsel, they could certainly choose to continue to have their private attorney in the proceedings but but they'll have counsel appointed from legal aid, if they choose not to do that. And the second, the last sense of that subsection you see is another part of the proceeding that says that the Department of Mental Health is also entitled to appear and call witnesses that the preceding proceeding again here, you think about it the question in this proceeding is when is whether the person is going to be committed to the custody of departmental health. So there's some logic behind permitting the department to appear at the proceeding and present testimony on that question. So that's that section going to move on to section three and not hearing any other questions. All right, so now, so again we're, we're keep keep in mind we're kind of moving along the chronology of the proceedings now. So in this case we're at the, again at the court, if the court after the hearing that we just looked at the court does find that the defendant is in danger to self or others and they commit the person to the Department of Mental Health custody for treatment, then this next section deals with notice to the crime victim, when that person returns to the community, there's nothing in current law that provides after a person is committed to the department for treatment and the person, you know, after being treated under various scenarios, maybe return to the community. There's nothing in current law that provides notice to the victim of the crime because remember this is only folks who have gone into the system through the criminal justice system. It's not dealing with folks who went into the department's custody through the civil process these are only folks who are coming in through the through the criminal avenue. And there is likely a victim of whatever criminal act took place and the proposal here is to create a system of victim notification for when, when the person who is in the department's custody is returned to the community. So that's the big picture of what's going on. It's a victim notification system for when persons who have been committed to the department as a result of a criminal proceeding, end up being returned to the community. Under section three, this victim notification requirement applies. I'm going further down here. I may have. Oh yeah, here. So this victim notification requirement that is going to talk about in detail here because there's a lot to it. It applies. If a defendant has committed to the Department of Mental Health custody after having been found and I'm at the very beginning here Roman over one and two, after having been found either not guilty by reason of insanity, or incompetent to stand trial provided the criminal case has not been dismissed. Now what that means that second subdivision Roman over two is that as you can see so so this victim notification requirement applies to everybody who's been found, who after it was been committed after having been found, not guilty by reason of insanity, but it doesn't apply to everybody who's been committed after being found incompetent. It's only those who are who are found incompetent and the person's criminal case has not been dismissed what does that mean kind of goes back to what I was saying very early on in this walkthrough. Remember the prosecution doesn't necessarily have to keep the criminal charges in place against the person after they've been found incompetent. I'm sure the practitioners will talk more about this as well but it's not unusual for a person to be incompetent for a very minor offense might be shoplifting or or something like that and that could well be a case where the prosecution says it's really not helpful to the person or a wise use of resources or in any way impact community safety to proceed with a criminal case against someone's been found incompetent for you know shoplifting of something very minor. The prosecution in those cases it's not unusual for them to just dismiss the case in those sorts of cases. The policy decision here is it's not it's not necessary to provide any victim notification for that minor a proceeding. So, on the other hand, if the prosecution has kept the criminal charges kept the criminal case going has not dismissed the criminal case there's no presumption there that would be a more serious matter, and that would be one in which victim notification would be required. So, that's the reason for that distinction. In the beginning as to who, you know, in what cases does this victim notification requirement kick in. When notice what let's say when notice is required okay with this victim notification component kicks in and is required then the Commissioner has to provide it under three different circumstances and that's what we'll look at now. Excuse me. I'm excuse me. Representative Donahue his hand is up. Go ahead. Yeah. Yeah, I'm trying to understand and follow the term victim under the victim of the offense. And I understand that if a crime occurred, then there's a victim of the crime, but if a defendant never stood trial. The charges are maybe still are still pending. But there's never been a conviction. So, we don't know legally whether that individual actually was the perpetrator of the crime that created a victim. So, the reference victim of the offense being notified, because a person who was accused of a crime. Is that, is that what we're talking about, because it seems to imply that this, that this person did in fact, do the crime and create a victim. When that was never established my following that correctly. Well, I don't know that I would agree that it wasn't established in some evidentiary way but I think you're you're correct that that the, there has been no adjudication of guilt. Yes. And in what way was it established in some evidentiary way in the in the process we've talked about so far. Well I think the, the, the practitioners I think will be will be able to better describe that but I think it's, you know, it's got involved the, the affidavits and the, the, the proceedings that the prosecutor would have brought to begin the, the criminal proceeding in the first place you know whether it be an indictment or information. Those could potentially create evidence of who the victim was if there was. But there's never been any, any fine. There's never been a legal finding that that person was the one who committed the crime that created a victim. Was that right. Well there's no adjudication of guilt. That's correct. I don't know. Any, any other questions here before we're moving forward or Yeah, thank you go ahead. Yeah, okay, sure. So as I was mentioning the this notice this victim notice that we're talking about is already kicks in when, when sort of one of three or four depending on how you look at it circumstances occurs and the first one is at least 10 days so this is and you say who does the notice have to be provided to him so I did cover that that's a b1 right there. The commission has to provide notice to the state's attorney of the county where the prosecution originated, or to the office of the attorney general with that office prosecuted the case because remember it could be either they have concurrent jurisdiction or a prosecutor prosecuted criminal case. But whoever, whoever prosecuted has to get the notice and the notice. And when does, when does the notice required well your circumstance number one, at least 10 days prior to discharging the person from the care and custody of the commissioner, or commitment in a hospital, a secure or secure residential facility to the community. This is a discharge so on an order of non hospitalization, which is referred to as an at least 10 days before either one of those two things happening a or bb. After either the person is discharged, right from from the commissioners custody so presumably the treatment has been successful, and the person is discharged, or bb, the, they aren't fully discharged from the commissioners custody, but they are their treatment is changed from a hospitalization or secure residential facility to the community on what's known as an order of non hospitalization so they're still being treated in the community they are still under the custody of the commissioner, in other words they're not fully discharged they're still under the department's custody, but they're being treated in the community. And remember as I said at the beginning this, this whole victim notification piece is kicking in under various circumstances under which a person who has been hospitalized, maybe returning to the community. So that's kind of the big picture unifying circumstance that's going on here whenever someone who's been hospitalized for treatment. Having come through the criminal justice system to the department's custody when they are returning to the community under one way or another and this is what we're talking about right now how how might that happen, how would they return to the community. That's when this note notification is required to the state's attorney, or the attorney general. So how might that person return to the community well as we just saw one AA could be there being discharged from custody completely under one bb could be that well they're not being discharged completely, but they are being sort of stepped down in treatment level from hospital commitment or commitment in a secure residential facility recovery facility to an OH and order of non hospitalization so they're being treated in the community. Again, in person is moving to that level. Either one of those things happen notification requirement kicks in another another way a person might go to the community look at subdivision to at least 10 days prior to the expiration of a commitment or issued under this section, if the commissioner doesn't see continued treatment. So what that means is that again the person has been committed there's been this commitment and order issued by the court they were committed to the Department of Mental Health. But the way those orders work. The initial commitment order last for 90 days to maximum period of 90 days, and it can only be 90 days. Now, if the person if the, what often happens is when these questions they often happen sometimes it happens it can happen. The, when the order reaches the end, coming up on the end of its effective period so again that initial order has to be for 90 days. They're the department can continue treatment. So in other words, if the person is still a danger to sell for others, they can be continued beyond that 90 day period and that that order for continued treatment has a maximum period of one year. So, initial order can be up to 90 days, then continue the order for continued treatment can be up to a year, still has to have to always be able to make that showing that the person is danger to sell for others. But, so if you think about how that could work, let's say the person was committed initially for 90 days and then they've got a second one year order in place. It could be another way and again we're talking about ways that a person may be returned to the community. As that one year period starts to start to come to the end as you start to come to the end of that that one year effective period of the order. The department has to make a decision as to whether or not the person should be subject to another order for continued treatment for up to another year or not. They could decide just to let the order expire, they decide the person is no longer needs treatment. They could let the old because remember it's only going to be effective for a maximum of another year, they could let the decide to let the order expire, and when it does, the person is free to return to the community. Again, that's not an actual formal discharge. So in other words, it wouldn't come under, it wouldn't be exactly the same as what we just described this, this formal decision to discharge a person that we talked about in some room and in some room. So this is covering another circumstance under which a person could return to the community after having been committed to the to the department's best if that period expires, they don't seek an order for continued treatment. So they're going to return to the community under. For that reason, then, then notice is required as well. So that's number two. Lastly, number three when also notices also required when the person abscones from the custody of the commissioner. So in other words, the person fleas or escapes from the custody of the commissioner. Again, another way that they might be in the community that wouldn't come under one or two. And the idea here again is that this notification to the state's attorney or the attorney general is required. And then the next question obviously is when the state's turning or what happens when that when they get that notice when the essay or the AG received the notice. Well, you see in Roman numeral to there what's required is that they have to provide notice of the action in other words whatever whatever action the department took to any victim of the offense who is not opted out of receiving notice. So the point there is that it's going to be an opt out structure so that a victim has the ability to say they'd rather not get the notice and if that's the case, they won't get it. But, but they haven't done that then they would receive the notice and they're anymore. When any one of the circumstances that we just described happens. Excuse me, and I assume that your hand is up from before or. My apology. I think you're good. Okay, great. Go ahead, Eric. Thank you. Sorry, was there other other questions too or no or. I think we're good. Go ahead. Thank you. Okay. Thanks. Yep. So, the, the, and I was just going to get to the for a moment to the victim definition because that was something that represented down to he was alluded to as well because across references the definition of victim and the criminal crime victims statute and that defines victim as a person who sustains physical emotional or financial injury or death. As a direct result of the commission or attempted commission of a crime or active delinquency. So, so anytime it's crime is committed or attempted to be committed. That's, that's the definition you have an existing law. So, what, what we just talked about was notification. When a person is returned to the community under one process or another. There's also a separate notification piece that we're now looking at some subdivision see now this supplies only to in situations where a person is already in the under a non hospitalization order. So in other words, they've already, they've already been in custody of the department and they've been, they've been placed in the community on a non hospitalization order. And I'm going to just for a moment if I can switch us to the non hospitalization order statute so both can see how that works. So this is in title 18 judicial proceedings are related to these proceedings that we're talking about now. So this non hospitalization order can happen when a court finds that a treatment program, other than hospitalization is adequate to meet the requirements. And in that case, the court orders the person to receive whatever treatment, other than hospitalization is appropriate for a period of 90 days so this is a non hospitalization order oh and each person can get the treatment in the community. So, if that's happened that the court has made that or the person's in the community under an OH. This is a separate notification piece that requires the commissioner to provide notice, again, to the state's attorney, or the office of the attorney general in this case you'll notice to the committing court so the court that issued the order as well. Anytime that the commissioner becomes aware that either one of two things, either the person is not complying with the order. So they're in the community on this own agent but they're not complying, or at the alternative treatment whatever it is that's going on in the community has not been adequate to meet the person's treatment needs. So when the commissioner becomes aware of that, the commissioner has to provide that notice to the court. Yes, the court but also the prosecuting office whether that was the essay or the AG. Just to go back to the statutory language again so because that language certainly begs the question of well what does this mean, just to so the it didn't come out of nowhere. The, it's the same language that's in the own eight statute currently. So if you look at subsection be, again, in this case it's referring to the court not the commissioner but if it comes to the attention of the court that the patient is not complying with the order, or that the alternative treatment is not been adequate to meet patients treatment needs. So if the court becomes aware of that then the court may after hearing do one or two things you'd consider other alternatives, it's an original order. You know direct the patient to undergo a different alternative treatment program, or enter a new order of hospitalization for the remainder of the 90 day period so it can recommit the person to a hospital. That's just so that you're familiar with the existing statute in that case it's the court becoming aware of it in the proposed language here is that if the commissioner becomes aware that that's happening this person's in the community on the O and H, then they have to notify again the procedure. As to what has been happening. There is not you'll see any indication in this language as to what the attorney general or the state's attorney will do with the information once they get notified with it. And there was some discussion about that. In the committee downstairs. But rather than resolve that they understood the complexity of it and you'll see when we get to the, you get to the forensic care working group that's established that they're tasked with studying that exact issue what to what should happen what should be the next process. When that information becomes that notification comes through. So that's the end of the victim notification piece. One more piece that I'm going to talk about here in section for before Katie jumps in with the health care provisions but pausing for a moment in case there's other questions. Thank you Eric. I'm not seeing any hands. I know I did say that we were going to take a break around 10. I think it would be best if we finish our walk through the bill. And then we'll take a break. So I don't want to break up this walk through overview. Okay, go ahead. Thank you Eric. Sure. And I think we've gotten through the bulk of it so a couple of more pieces but so I'll move on here to section for this is to the procedures involved when, when, when the insanity defense or competency to stand trial are being raised in a criminal matter. Right now, under under the rules of criminal procedure, the prosecution is able to have its own psychiatrist or other expert conduct a reasonable mental examination of the defendant. And the defendant has provided notice that sanity is going to be an issue in the trial and it should mention that it's also required under the rules of criminal procedure that notice be provided. So when a defendant is going to raise the insanity defense, the criminal rules required that notice be provided to the prosecution. But in any event, when that has happened, the prosecution is able to have its own psychiatrist conduct a mental examination of the defendant. Therefore, the rules don't permit the prosecution to conduct its own examination, when the defendant's competency is that issue. So remember we're talking remember the key point those being two different things again. The rule says prosecution have their own psychiatrist when sanity is an issue doesn't say anything about what they can do that they should they're able to do that when competency is an issue. The rule for basically does so. And with that, and so it provides specifically that the same thing that's that's allowed now when sanity is an issue, it will allow proposes to allow when competencies an issue, and require the defendant to allow the prosecution to require the defendant to submit to a reasonable mental examination, which you see is the same language that's used in the existing language right above the line is right above the new, the new underlying language. You'll see that when notice is given by the defendant that sanity is an issue, then they can have the defense submit to a reasonable mental examination by a psychiatrist or other expert. So that language is is repeated here for competency proceedings. And now this is, I should point out two things that about this is that, and I'll actually go back to one other point about the victim disclosure piece as well just because a couple of legal points I want the committee to be aware of. I'll go back to this one. The, this, this is in response to Vermont Supreme Court case called statement Cheryl, which held that that the prosecution could not get this could not have a its own mental examination and a competency proceeding because the language did not provide for and see here, as we just pointed out the language does provide for with respect to sanity proceedings, but not competency. So, this is a response to that decision should point out here though that the, that the various parties including the Attorney General and Defender General have different opinions as to whether or not this might raise constitutional issues with respect to due process and self But they, they both have put forth their positions on that it's not something that's been fully resolved by the Vermont Supreme Court so it shouldn't be a surprise that that gets litigated, but the Senate decided to include it, feeling comfortable that it could be defended, but knowing also that it will very likely be litigated and the court would have the final say. My last piece before I will transition to Katie is the going back for a moment something I neglected to mention with respect to victim notification that that requirement of providing notice of those changes and the defendants status treatment status by the Department of Mental Health to the state's attorney and the Attorney General as well as the court in some circumstances. There's also been different opinions put forward as to whether that could conceivably be a violation of the HIPAA privacy protection of a person's medical information under federal law. So our offices looked at that question. Again, similar to what I just said it, not that there might be reasonable arguments on both sides but our view is that there's legal basis based on case so out there to conclude that that is not a HIPAA violation. Again court might reach a different decision can't say for sure what they would say but there's certainly a sound legal basis for saying that it's not a HIPAA violation so that Senate decided on that basis to conclude that they were okay for now unless a court said any differently in the future. So just wanted to give the committee full disclosure on those two points. Thank you. Thank you. That's helpful. Yeah. So that brings me to the end of my piece and now we're going to turn it over to Katie for the talk, the walkthrough of the last couple of sections. Great. Thank you. Thank you Eric as always. Yes, thank you. And Katie let me know if you want me to as they want me to move the screen here. Okay, I'll let you know. Thank you. So I'm going to transition us to looking at various report backs and information that would be coming to the General Assembly for further help your decision making. So the first piece is a report that would be coming on November 1 of this year. And it's a joint inventory a joint evaluation between the departments of corrections and of mental health. And it's looking at the mental health services that are provided by the entity that DOC contracts with for healthcare services. You can scroll down please Eric. And so you'll see that this language specifies that in this comparison in this inventory that would be coming back. And it's looking at the type frequency and timeliness of mental health services that are provided in the correctional setting and importantly how those services differ from the services that would otherwise be available in the community. The evaluation is also to address how the two departments mental health and the Department of Corrections MOU impact services that are provided by the entity that DOC contracts with for healthcare services. So that is the first piece. And then if you scroll down a bit. The second piece is a forensic care working group. And there are three pieces or kind of three separate inquiries with in this section of what this group is going to be looking at. And I also wanted to know, you know, I kind of surprised me actually when I went back and looked at again last night that it's quite a bit of work that's coming back and the time frame is between August 1 and November 1 here for these three different inquiries. I wanted to bring that to the committee's attention. And this first paragraph we just have that the department is convening a work group of interested stakeholders and you'll see there's a whole list of potential stakeholders that I'll go through. But because the nature of the three inquiries that we're going to look at on the next page are different. The language indicates that the stakeholders working on each inquiry will be as appropriate. So for example, a representative from BGS might not be weighing in on a policy question but they would be weighing in on the inquiry about a facilities question. So, depending on the particular inquiry, the group of stakeholders looking at the issue will be different. And this language isn't prescriptive as to who exactly is looking at what issue. So interested stakeholders include the Department of Corrections, the Department of State's Attorneys and Sheriffs, the Office of the Attorney General, the Office of the Defender General, the Director of Health Care Forum, BGS, a representative appointed by Vermont Care a representative appointed by Vermont Legally It's Mental Health Project to crime victim representatives appointed by the Vermont Center for Crime Victim Services, the Mental Health Care and Budsman, a representative of the designated hospitals appointed by Voss, and a person with lived experience of mental health, excuse me, a lived experience of mental illness and any other interested party that's permitted by the commissioner. And then we turn to looking at the three separate inquiries. So the first inquiry is in subdivision one. And this is looking at gaps in the current mental health and criminal justice system structure opportunities to improve public safety, and the coordination for individuals who are incompetent to stand trial, or who are adjudicated, not guilty by reason of insanity. So this is kind of consistent with the language we've looked at in the bill so far, looking at how these two pieces of mental health treatment and criminal justice are making folks coming into the mental health system through the criminal justice door. How, if there are any gaps in the services there. So specifically the working group is to review competency restoration models that are used in other states. And those used in other states that balance treatment and public safety risks posed by individuals found not guilty by reason of insanity. For example, psychiatric security boards including Connecticut's model the Connecticut psychiatric security review board, and guilty but mentally ill cases. So that is the first issue that this group would address. The second issue has to do more with facilities and this is an issue that, for example bgs would be weighing in on. So this is looking at about evaluating various models for the establishment of a state funded forensic treatment facility for individuals found incompetent to stand trial, or who are adjudicated, not guilty by reason of insanity. And then specifically we have what the evaluation is to address here, the need for a forensic treatment facility in Vermont. The entity or entities most appropriate to operate such a facility, the feasibility and appropriateness of repurposing an existing facility for the purpose of establishing a forensic treatment facility versus constructing a new facility from scratch. In subdivision D, the number of beds that such a facility would need and the impact of repurposing an existing mental health treatment facility would have on the rest of the mental health system. And then if you could scroll down please Eric. Yeah. And then lastly the fiscal impact of constructing or repurposing such a facility, the estimated annual operation costs, and then also taking into consideration that what we kind of refer to as the federal IMD institutions of mental disease waiver, and that's a federal term not a Vermont term but these are our federal waivers that govern Medicaid reimbursement and recognizing that those funds would not extend to provide somebody's treatment in a forensic mental health facility. And I see there's a hand I'm not sure if I should pause. Thank you. Yes, can. Can we just back up. Why was Connecticut brought up and not other. What, what's the reason for Connecticut please. I can't recall off the top of my head to be honest. This bill was under consideration during the last biennium or at least portions of it were, and I know at that time Connecticut was held up as a model. And I'm, I'm not sure at this point with the specifics where why Connecticut's model was of most interest. Okay, thank you. Thank you. And so we have this, the last of the three inquiries that are part of this working group. So, this section takes into consideration the notification process that's been proposed in this bill. And so considering this notification process, where the commissioner of the Department of Mental Health is required to provide notification to the prosecutor. Upon becoming aware that the person that persons on an order of non hospitalization are not complying with the order or that alternative treatment is not adequate to meet the person's needs. The working group is to make recommendations. It deems necessary to clarify this process, including any recommendations as to specific facts and circumstances that should trigger the commissioners duty to notify the prosecutor. The recommendations as to the steps that the prosecutor prosecutor should take after receiving the notification. Then we have language and subsection be that allows people who are not state employees who are participating in these working groups to be entitled to per diem and reimbursement for expenses. And this is the language about the due date so this work of these three different inquiries is coming back November 1 of this year. DMH is reporting on the results of all of these inquiries findings and recommendations. And that's coming back to the Joint Legislative Justice Oversight Committee. And the report is to include proposed draft legislation addressing any identified needs to change the statute. And then we'll move it for section six and then we have an effective date of July 1 2021. And I'll stop there but I see there's a hand. Yeah, go ahead Barbara. Thank you Katie. Thank you chair grant. Katie, I'm wondering a couple of things from the earlier part I was just waiting and wrote my questions down. So, in the first report that do see is doing with Department of Mental Health. So what we're going to do an inventory of what's currently available versus what could, what would be provided in the community. That's not what currently is right because I could picture us getting back waiting list whatever is that I'm assuming that's saying if it were funded, what could be provided in the community. Maybe not. So, I was looking for clarification. I think this is trying to capture what is, what is currently in existence. So this is asking do see in DMH to, to take an inventory of what services are currently being offered in a correctional setting through the do sees contractor for healthcare but then taking it a step further and seeing how these services that are currently offered and do see differ from what's being offered in the community. And then they're giving, that gives criteria of how to measure that, in terms of the type of services the frequency of the services provided the timeliness of services. So within those categories, how, how did the services differ in the community and in a correctional setting. So, I'm worried that if we don't clarify that further, what could come back is, here's what is offered in it do see you know we've got dedicated people and they're got the got X caseload. If we send them to the counseling service. And now we have a waiting list we have so it may be that if we said, look, we're spending a million dollars for this in corrections. If that million dollars were we addressed to our community systems. Here's what would be available rather than what currently is available, because there's not a mental health agency that's going to say, Sure, we can on demand now serve people in prison. And so it's almost feels like it's, it's going to be very hard to make the community resources be a viable option. Because that isn't clarified. I think I take your point. Um, should I flag this at this point to come back to it. Um, I think it's, I think the section is. Well, let me back up. Are you, is your comment more about that the comparison is more of apples to oranges. That we're not really comparing the same thing just because the resources in the community, the waitlist in the community are so different than the experience of services and corrections. Right, so if the if it's, what is corrections currently offering. There's not money going towards that. There's not money and mental health going towards that and you know I've not, I've been away from community mental health for a while but adult services were really underfunded years ago and I can't So it doesn't seem like I would be if it went through I would be shocked if it didn't come back. No mental health is too full we can't do this mean so is the mandate. What can you do without additional money, because then Department of Corrections needs to say what they would do if they didn't have this million dollar contract. You know what I mean like it's got to be a level playing field. I'm not sure if I'm fully taking your point but I think the, the kind of the purpose of the section is an issue of parody to see what type of services are available and I wondering and I got cut off before my, my computer kicked me off. So I don't know if you heard this but are you kind of saying it's an issue of apples and oranges that just by nature the of the practitioners available and the size of the waitlist. For example in the community it's just that different services will be available on a different timeframe than in correctional settings. For sure that I'm sure there are other things to again if we said there's $500,000 that we have for the service. Let's look at what the services now. Let's look at what that 500,000 would buy if we used our community resources feels different than the way it's worded now. Okay, I hear what you're saying. The other part that I wondered about sort of related to that theme, or is I heard you say the contract for mental health services. Is that separate than the health, I think it is a separate contract than the health corrections contract. There may be overlap, but there's more than one health contract right. If I said a mental health contract and I misspoke I was referring to the health care contract as to whether there's a separate contract for mental health services. I'm not sure. And I would, I would have the, the Department of Corrections or DMH probably knows, and then ask them to wait. So that also is interesting because shouldn't we also look then at like community health centers as part of the answer, not just mental health services. I know Chittenden Community Health Center has psychiatry substance abuse treatment. And I, I like that it's combined with health because it is health. I do wonder that's two things that I wondered about that aren't spoken in here, but are part of our current contract. It's with a for profit entity, and I don't know if we're saying, let's look at for profit and nonprofit entities. And it's an out of state entity which doesn't matter here so much to me, but I wondered when we talk about building or repurposing a building. We currently, as you know, send prisoners to Mississippi, and we have sent them to a bunch of different states, which I'm not a fan of but I'm wondering if that issue comes up or at least should be talked about if it's if we're okay with that being one of the options that's looked at because maybe Amherst mass has an amazing facility, and would meet our needs in a cheaper way and be closer to home and family for most people than the purpose of building in high gate. So, I'd love to have that on the table. And again, I think the for profit issue in some ways either needs to be thumbs up or thumbs down or discussed. So, yeah, thank you Barbara and I think we can make note of that that when we get into discussion or if another committee looks at this. We can ask them to consider that. Thank you. And I'm not sure if it was considered in the in the Senate or not. Thank you. Okay, should I pull the bull down build down. Sure. I'm not seeing any other hands. Questions correct. Let me just double check before we take our break. In terms of the language in the, in the bill any questions. Katie and Eric, thank you. Thank you very much. It was very, very thorough and I appreciate it and thank you to everybody for for pushing through. I realized we're almost a half hour past our break time but it was important to get it all in at once so let's take a break until 1045. It started again and as I said earlier, very ambitious witness list and we'll just do what we can until we stop at 1145 so we'll see you in about 1045 please thank you.