 Good afternoon and welcome back to Vermont House Judiciary Committee. It is Wednesday, March 31st, and we are continuing our consideration and testimony of S3 and actually relating to competency to stand trial and insanity as a defense. And we don't have too much time today, but I do appreciate our witnesses being here today and your flexibility and we'll, we'll see how we can do by four o'clock or shortly before so AJ Rubin of the disability rights Vermont. There you are. Good afternoon, welcome. Thank you. Good afternoon. Thank you so much for inviting me to talk today. My name is AJ Rubin. I'm the supervising attorney at disability rights Vermont. We are the state's mental health care. As well as the federally authorized protection and advocacy system. I don't know how to shut off my phone so I apologize for that. Our office has a pretty unique position regarding the subject matter of S3. We represent people with mental health conditions serious mental illness around the state, especially in institutions like hospitals and prisons and in the community. And we also have a pretty large practice representing victims of crime with disabilities. Our office formally represents victims of crime in every county in the state and through our advocacy efforts we assist many, many more every year to deal with the tragic fallout of being victimized. Our testimony is informed by both working with people with mental health conditions who are victims and working with people with mental health conditions who have who have committed crimes or have victimized people and been found not guilty. By reason of insanity or not competent to stand trial. My most important message for the committee today is that Vermont has needed improvements in the representation of criminal defendants found to be not competent or not guilty for many years. And aspects of S3 will effectively resolve that that lack of appropriate representation by having a mental health law project become involved so that seems like it is destined to make a good positive impact. So in addition, the effort to have task force and advisory committees, look at the forensic capacity in the state has has also been something that our office and many advocates for people with disabilities for years have been requesting and so that also should have a very positive impact on the needs of our community. So, overall, there are many parts of S3 that we think fit the needs of our state, and they're very right minded. The only controversial aspect of the bill from our point of view is the aspect of the section regarding notification of orders of non hospitalization status. To be clear. I listened to the testimony this morning it was extremely compelling. Both. Mrs. Court and Dick and Mrs Carol were extremely gracious and persuasive. And I agree with with almost everything they said. Specifically, Vermont, you know, should be first in many things and, and as Mrs Carol said, I had testified in the Senate that as far as I could tell there was no other state that had a provision like this provision that would require notification about the status of someone's order of non hospitalization, whether the treatment plan is adequate and whether they're complying. What I want to reiterate is that DRVT does think that Vermont should be a leader in in an effective response to people's needs for community mental health support and systems. Unfortunately, this aspect of the bill will likely create a lot of legal problems, and we'll have no positive impact on what really needs to happen. Both Mrs. Court and Dick and Mrs Carol said that we have a right to safety in our society and DRVT firmly believes that they also testified that the Department of Mental Health doesn't seem to have the capacity to effectively monitor, supervise and protect the public from people who are placed in its custody under under orders of non hospitalization. I think that's also probably true. Another concern with the language in the bill right now is that it's unworkable, very vague and fraught with with legal challenge opportunities. The reason why it's just not very functional is that the terms are not defined in terms of what is compliance with the treatment plan when is it adequate, when would the commissioner get notified. I don't know what to do with that information. I've spoken with James Pepper and David sure, as well as Sarah Robinson from the network. I think we all agree that some more work on that section should occur we're happy to do that work. After the day, Vermonters have a right to know that if someone commits a violent act, and they're placed into the custody of the commissioner of mental health, that the commissioner and the agency of human services together will will protect the society from that and make that person have a quality of life that doesn't require they be locked up for the whole, you know for their existence as well so if that's possible so there are a lot of opportunities to enhance the community mental health system to make sure that victims of people have information they need so they can feel safe and secure, but the aspects that are currently in the bill seem seem quite problematic and so we would ask that you know I think it would be a good idea to avoid litigation, and to have a more effective bill to frankly delete that section, and then have the study committee come up with the details of how to implement it because as I said earlier, currently the details are vague. It doesn't seem like it's very functional. And it could, there could be opportunity to really make some improvements there. If the if the summer study committee or the committee could look at those things. I'm sorry excuse me AJ. Can you just, I think I know where you're, what section you're referring to, but if you could. I think you're on page six. Yes, I'm on page. Page six of 11. This is section C. The person's committed on the section to non hospitalization, and there's little eyes the person is not complying with the order and two little eyes the alternative treatment is not inadequate. Those are the sections I'm referring to yes representative and they are the ones that seem most problematic. Again, there is a, we do not object and we don't think we don't think there's any legal problem with notifying victims when a person is in violation of the O&H and a motion to revoke the O&H has been filed when they move from a secure facility to a community setting. Other states have those kinds of notices and they have not been subject to challenge. And again, Vermont should be a leader in supporting victims, and we should be a leader in having a robust community mental health system and we should be doing those things. This notice provision doesn't really do either of those things and is sort of a false sense of security. What really needs to happen is we have to fully fund our community mental health system as well as our victims advocacy system. I understand that one of the bright spots and in people's course through the through the criminal justice system when you're a victim is the victims advocates. They are such compassionate people, but as Mrs. Carroll said I think they have limited information and they have actually limited time. My office spends a lot of time working with victims with disabilities because we have expertise in that and it takes more time and the state attorney's victims advocates often don't have that time. So there are ways to monitor people who are known to be possibly violent without locking them up. And there are ways to support victims of crime without notifying them about things they have no control over and would just cause anxiety. Like, you know, maybe the person didn't go to tour their meetings is that non compliance with a treatment plan. Does the victim need to know that what would that what they would do with it. One of the concerns I have with the way the bill is currently written is notice of non compliance or the treatment plan would go to a state's attorney. But the state's attorney may be required or make sure to give that to the victim. The victim could then put that on Facebook. And that would have a pretty negative impact on the person's treatment who's under care and in the long run that would be bad for everyone. I think there's a lot of room to improve the system that section of the bill seems very problematic and sort of, and you know, good intended but not what we really need what will what will help save lives and prevent injury is having a much more robust community mental health system that has the capacity at lots of different levels to provide support. Thank you and I and I appreciate your willingness to to meet with some of the other stakeholders in and work on work on language so so I would ask you to do that for them for the next time that we that we meet on this. Thank you. Go keep going go ahead. My last two points is that it's pretty easy to to alleviate the problems that the parents were talking about, in terms of the, the, when someone goes into the custody of mental health, the victims don't know anything about any more. The easy way to resolve that is to give the, the person who caused the injury, the person now under custody, the opportunity to consent to provide some information to the person they've harm. I represent a lot of people in that situation and by and large, they have remorse and they want to make amends for something they did when they did not have control over themselves and therefore they're not criminally liable. There are ways to to to fix that problem through consent and notice that is really the easiest way to resolve those so I'm happy to I know we're limited on time I really appreciate the effort of the committee. For the most part this bill is very much needed will fix a lot of problems. This one small area would probably best be served by having more study about how to actually fix the problems that are identified. And again, I don't I don't mean to rush you, but you know if you have more testimony please, please go ahead and we, we will be spending much more time on this so, and certainly, we'll have you back but I don't want you to, to feel rushed so I feel like I've testimony was very strong this morning and I think I've said my piece I'm happy to answer questions and I'm certainly eager to work with the other stakeholders so that we get a bill that will address the needs and not cause undue confusion. Great. Thank you. Thank you. Any committee members and then includes representative Donnie I'm not sure representative Marcy is here but any, any questions. Great. Thank you. Thank you so much. Okay, so Jack color. Thank you. Good afternoon Madam chair members of the committee. Thank you for having me. It's been a while since I've been here, and there's a lot of new members here so good to see people. I'm Jack McCullough, I'm an attorney at Vermont legal aid, and I'm the director of the mental health law project of Vermont legal aid. And what we do is the mental health law project represents all across the state of Vermont in all civil proceedings relating to involuntary mental health care. That includes original request to commit someone to hospital requests for involuntary medication requests to extend orders of involuntary treatment. Everything that could impose involuntary mental health treatment on somebody except for the hospitalization hearings in criminal cases, which is part of the subject to this bill. I appreciate that the legislature has been committed to moving this bill forward this bill, at least in part arises out of a working group on the commission called the commission on offenders with mental illness established by the legislature in 2016. And it incorporated representatives of all, all the players that have some piece of this issue, including states attorneys the public defense system. Corrections the Department of Mental Health, the judiciary. Pretty much everyone you can imagine. Mental health law project disability rights for month. And one of the outcomes of that case of that project was a recommendation that a criminal defendant is found incompetent to stand trial. And is faced with the next step in the process in which the criminal division is considering involuntarily committing that person to the hospital or to an order of non hospitalization. A person should be represented by someone from the from the mental health law project rather than from the public defender system or from or by their retain counsel if, if they wish, and the purpose the reason is quite clear just as I would hesitate to represent someone in a criminal charge because that's not in my expertise. The all the players in the system recognize that the resources and the issues involved in the involuntary mental health system are not within the expertise of the states attorneys and the, and the defense bar. And that allowing us to represent people in these in these hearings gives them the opportunity to be represented by the, by the attorneys with the greatest level of expertise in this area this is literally all we do. And if I say so me myself, we do it well. So I should talk, I'd like to talk a little bit about the process and the and the concepts here. We heard presentation this morning about the concept of being incompetent to stand trial and how that relates to sanity or insanity. The key concept for being incompetent to stand trial is that the defendant does not have the ability to understand the proceedings, or to assist his or her attorney in preparing a defense. And I can give you a couple of examples that might explain how that could come about. We occasionally represent people in our cases. Who don't even recognize that they're engaged in a court proceeding of any kind. We sometimes represent people who because of their mental illness are not able to trust the people who are appointed to represent them. We have people whose mental illness might lead them to conclude that no matter what they do some unseen forces are going to direct the outcome of the court proceeding and so there's no point to, to working with their attorney to prepare a defense. In those cases, we, in my cases we sometimes request a guardian ad litem to be appointed to protect the party's interest that also happens sometimes in, in criminal cases. If the person is found incompetent to stand trial. If the defendant is found not guilty by reason of insanity after trial, then the next step is a hospitalization hearing at which the court will determine whether the person suffers from mental illness, and whether the person requires commitment to the custody of the Department of Mental Health in order to protect either the person or other members of the public. I've heard it said is in some of the discussion of this bill that the Department of Mental Health is not concerned with public safety as, as it works with the, with the people in its custody. In fact, I think that's a bit of an overstatement because in reality, the proceedings in the family division or the proceedings under title 13 for commitment. To apply the standard of is the person, the person in need of treatment, or a patient in need of further treatment. And that means does the person as a result of mental illness pose a danger to herself or others. One justification for the person being committed or being placed on an order of non hospitalization is that involuntary treatment is necessary for the protection of the public. And those are the cases that we, those are the questions that we litigate in in our proceedings. Let me see, in, in our cases, there, and in a hospitalization hearing in the, in the criminal division there are two possible outcomes, the three possible outcomes. But the two custodial outcomes that we have in mind are the person could be ordered hospitalized, or the person could be placed by order of the court on an order of non hospitalization, which is an order. Committing the person to the custody of the Department of Mental Health and requiring them to follow certain conditions. And in either case, the justification is that involuntary treatment is necessary for public safety. Those are the questions we, we address. Once the person is on an order of non hospitalization, they're, they receive treatment from generally from one of the community mental health centers. And the orders typically include provisions like go to all your appointments, take your prescribed medications. Anything that poses a threat or danger to yourself or others. Sometimes they can include provisions regarding the use of alcohol or controlled substances. Sometimes they include provisions about the person's residents. Directed towards what is, what is established in court to, to be needed to keep the person safe to keep the person from posing a threat to themselves or others. And in those cases, we have a right to any ability to challenge all of the predicate facts to support the support the commitment. And so if the person, if there's an argument that the person is not a danger, then that's, that's an argument that we, we raise. If the, if the person is not complying with the order of non hospitalization. What generally happens is that the agency is in communication with the department of mental health and the department can file a request with the court to enforce the order by revoking it and ordering the person return to the hospital and what could happen is the court could could order some modification of the order. What could happen, the court could find that the person, the state has not demonstrated that the hospitalization is necessary, or the court could determine that the person needs to be hospitalized or violating the order it's they're not showing that the, that they're safe to be to be in public. And as a consequence, they might be returned to a hospital. And we're already representing people on those cases and we litigate those cases regularly. Just have a couple of other things. And one is with regard to PJ Rubens comments. I agree that there's a real issue about the notification process and and there are two somewhat contradictory provisions of the bill the way it's now written on on page on section three of the bill in page on page six. There's a decision for required there requires the Commissioner of the Department of Mental Health notify the state's attorney. If the person is not complying with the order or treatment is not adequate to meet the person's needs. Then on page page 10 of the 10 of the bill, the which is a section for the study or section. The working care working group, the bill prescribes that the working group will evaluate the same, the same issues of notification I do think that having these notification issues being discussed at the working group for recommendations on where we should how we should go with this is the way to go. I think there might only be one other small thing that I should mention. In section three of the bill and this is really just a wording issue in second section three of the bill page six line one. That includes the word abscond any the person any time the person abscond from the custody of the Commissioner. Abscond is not a term that's defined in our statute and it's not a part of the general terminology of the mental health system. In a situation like this the term we would typically use is easy low, which is already defined at 18 vs a section 7101 subsection five. I'd suggest that it makes sense to change replace abscends would be Lopes. I think that's all I have at the moment but I'm certainly happy to answer any questions the committee might have. Thank you appreciate your, your testimony. Barbara, go ahead. Thank you. I'm going to lower my hand quick so don't forget. So check nice to see you thank you for, for being here. I'm wondering about a couple of things one is. What is the Commissioner of mental health sort of liability for making a mistake. Like, if somebody isn't safe and is in the community. Is there is that considered negligence or is there something on the hook, like, I know state attorneys feel very sensitive because I guess because they're elected and don't want to make our communities unsafe so how does that work with the Commissioner representative I think there's an answer to that question. I don't really want to tell you what the answer is because I'm not sure what the answer is I noticed that Karen Barbara the general counsel of the department is here and I think she'd probably be a better person to answer that. Thank you. So here's my second question. This morning we heard some cases where it sure seemed like some of the laws are written now they're skewed in one way. Have you worked with clients where it felt like it was sort of the exact opposite situation, because if so I'd be curious to hear more about those cases so we can make sure we're threading the needle. Yeah, I hate I hate to say what happened in those previous cases obviously we heard about a couple of terrible tragedies that that really should, we should do everything we can to make sure those those don't get repeated. I think one of the concerns that we have mental health advocates have had has been as AJ said, a lack of adequate capacity in the mental health system, so that even people who are wanting help can't always get the help they, they're looking for what they need, and that may cause them to have their condition get worse and worse and not be, and not not be able to be be safe, but but we do see cases where we think that the agency is probably seeking to have someone committed to keeping people in custody for a longer time than is really necessary. And, and that's part of what, what we're trying to do in the cases that we that we litigate so we're, we challenge whether the evidence is really there for keeping a person in state custody. I can tell you about five years ago. I litigated a case in the Vermont Supreme Court called in rate TSS and I don't want to go too much into the details but this is a young guy who'd been in the mental health system for many years. There was no evidence that he'd ever really done anything dangerous there. They were pretty sure that he was not in very good shape and he needed help, but no sign that he'd done anything dangerous. The statute says that the state has to prove that the person is a patient in need of further treatment, someone who's receiving adequate treatment and who would be likely to become in need of treatment in the near future if treatment was discontinued. The question that case was, does that mean that all the state needs to prove is he's likely to deteriorate in the new near future and then become a danger at some time after that. Do they need to show that he was going to be have his condition deteriorate and become dangerous both in the near future. And the Supreme Court determined that they needed to show that he would become a danger in the near future in order to justify keeping him in custody. And so we won that case and we've won a number of similar cases where the mental health system is pretty confident that the person is mentally ill but they really can't establish that at some time in the near future. The person would be dangerous without treatment. Whether or not they've been dangerous in the past. Exactly. Thank you. You're welcome. Okay, well, thank you. Thank you very much and I'm sorry that we have to have to stop and then not hear from everybody but a number of us have have meetings. Thank you. Whenever you want me. Okay, well, thank you. We, I know Evan has been reaching out to, to many, if not all of you. I'm going to be back Friday after the floor and then, and then we'll start up again at Friday, you know, 115. If that doesn't work for your schedules, certainly, you know, we have next week we'll be coming back to this bill. This is, this is a bill that takes time, and I want to make sure we, we hear from everybody. With that, we will adjourn.