HD29 - The Management and Release of Individuals Found Not Guilty by Reason of Insanity

  • Published: 1991
  • Author: Department of Mental Health and Mental Retardation and Substance Abuse Services
  • Enabling Authority: House Joint Resolution 68 (Regular Session, 1990)

Executive Summary:
The 1990 General Assembly requested, pursuant to House Joint Resolution No. 68, that the Department of Mental Health, Mental Retardation and Substance Abuse Services study the management and release of persons found not guilty by reason of insanity (NGRI). The resolution requests the participation of representatives of the judiciary, defense bar, Commonwealth's attorneys, and the community services boards. The legislature directs that the Department complete its study in time to submit its findings and recommendations to the Governor and the 1991 Session of the General Assembly.

The Department, through its experience in the management of insanity acquittees in its facilities and information provided by the monitoring system, has identified the following issues, on which the study has focused:

• The clarity of the statutory guidance provided to the courts and mental health professionals for management of insanity acquittees.

• The current law's effectiveness in addressing and balancing clinical and public safety issues.

• The adequacy of current criteria for increasing the level of freedom available to insanity acquittees.

• The effectiveness of current treatment in preparing patients for gradual reintegration into the community.

• The adequacy of release provisions, especially the availability of conditional release options and the authority to re-hospitalize upon violation of conditions.

• The appropriate locus for decision-making responsibility regarding management and disposition of insanity acquittees, including an examination of the feasibility of creation of an independent review board which manages and monitors evaluation, treatment, and release of insanity acquittees and advises the court on the disposition of these cases.

RECOMMENDATIONS

Temporary Custody and Evaluation

The post-acquittal pre-commitment evaluation should be conducted by two mental health professionals skilled in the diagnosis of mental illness and qualified by training and experience to perform forensic evaluations, one of whom shall be a psychiatrist and one a psychologist.. Such psychologist shall be qualified as a licensed clinical psychologist or licensed psychologist registered with the Virginia Board of Psychology with a specialty in clinical services.

The Commissioner should appoint both evaluators, at least one of whom is not employed by the hospital in which the acquittee is confined for treatment.

The evaluators shall conduct their examination and report their findings separately.

The evaluators should complete their evaluations and submit their findings to the court within forty-five days of the Commissioner's assumption of custody. If either evaluator recommends conditional release of the acquittee, the court must extend the evaluation period to permit the hospital and appropriate community services board to prepare a discharge plan prior to the hearing.

The acquittee's attorney, the Commonwealth's attorney for the jurisdiction where the person was acquitted and the community services board serving the locality where the acquittee was acquitted should be apprised of the results of the evaluations.

Commitment

The commitment hearing should be scheduled on an expedited basis, given priority in scheduling over pending civil matters before the court. The matter may be continued on motion of either party for good cause shown.

If counsel has been appointed to represent the acquittee in trial for charges of which he was acquitted, such attorney should continue to represent the acquittee in post-acquittal commitment proceedings unless relieved of such representation by the court.

The court shall commit the acquittee if it finds that he is in need of inpatient hospitalization. The court's determination shall be based on its consideration of (i) the extent to which the acquittee suffers from mental illness or mental retardation and the nature of such disability, (ii) the likelihood that the acquittee will engage in conduct presenting substantial risk of bodily harm to other persons or to himself in the foreseeable future, (iii) the likelihood that the acquittee can be adequately controlled with supervision and treatment on an outpatient basis, and (iv) such other factors as the court deems relevant to the issue of the need for inpatient hospitalization.

The terms "insane" and "dangerous" as used in the current statute should be eliminated.

If the court determines that an acquittee does not need inpatient hospitalization solely because of treatment or habilitation he is currently receiving, but the court is not persuaded that the acquittee will continue to receive such treatment or habilitation, it should be authorized to commit such acquittee for inpatient hospitalization.

Provision for appeal from a commitment order should be specifically included in the statute.

Confinement and Treatment

The Commissioner should be authorized to make interfacility transfers and treatment and management decisions regarding insanity acquittees in his custody without obtaining prior approval of or review by the committing court.

The Commissioner should notify in writing the Commonwealth's attorney for the committing jurisdiction of changes in any acquittee's courses of treatment which will involve authorization for the acquittee to leave the hospital grounds.

The committing court should conduct a formal judicial hearing at yearly intervals for five years and at biennial intervals thereafter to assess each confined acquittee' s need for inpatient hospitalization.

Prior to the judicial review, the Commissioner should provide to the court a report of evaluation of the acquittee's condition and recommendations for treatment, to be prepared by a psychiatrist or psychologist who is currently treating the acquittee. Such psychologist shall be qualified as a licensed clinical psychologist or licensed psychologist registered with the Virginia Board of Psychology with a specialty in clinical services. Such psychiatrist and psychologist should be skilled in the diagnosis of mental illness. If such examiner recommends release or the acquittee requests further evaluation, the acquittee should be evaluated by a second person with such credentials who is not currently treating the acquittee, such evaluation to include an assessment of the acquittee's need for inpatient hospitalization.

If the court determines that release is appropriate, it should so order upon approval of a discharge plan jointly prepared by the hospital and the community services board.

The Commissioner should be authorized to delegate any of the duties and powers imposed on or granted to him with respect to the treatment and management of insanity acquittees in his custody. He may establish an administrative board composed of persons with demonstrated expertise in such matters, to which he may delegate such authority. The Department of Mental Health, Mental Retardation and Substance Abuse Services should assist any such board in its administrative and technical duties. Board members should serve without compensation and be provided with immunity from liability when performing their duties in the absence of intentional misconduct.

Escape of an acquittee from the custody of the Commissioner should be designated a crime to permit the application of criminal extradition procedures should the escapee leave the Commonwealth.

Section 37.1-134.5, which sets forth procedures for judicial authorization of treatment of persons incapable of consenting to treatment on their own behalf, should be amended to permit application of its provisions to authorize mental health treatment of forensic patients who object to treatment.

Release

While the Commissioner should retain the authority to petition for release of an acquittee at any time he believes he no longer needs hospitalization, the acquittee should be permitted to so petition only once each year in which no automatic annual judicial review takes place.

The evaluation process triggered by a petition for release should conform with that applied in pre-commitment evaluations.

Upon receipt of the reports of evaluation, the court should conduct a hearing on the petition, such hearing to be scheduled on an expedited basis, given priority over pending civil matters before the court.

The Commissioner should provide written notice of the release hearing to any victim submitting to him a written request for such notification at his last known address.

At the conclusion of the hearing, based upon the report and other evidence provided at the hearing, the court shall order the acquittee (i) released from confinement if he does not need inpatient hospitalization and does not meet the criteria for conditional release (see discussion below) and the court has approved a discharge plan jointly prepared by the hospital staff and the appropriate community services board, (ii) placed on conditional release if he meets the criteria for such release and the court has approved a discharge plan jointly prepared by the hospital staff and the appropriate community services board, or (iii) retained in the custody of the Commissioner if he continues to require inpatient hospitalization.

Acquittees committed pursuant to the procedures set forth herein should be released only in accordance with applicable procedures governing release and conditional release.

Conditional Release

At any time the court considers the acquittee's need for inpatient hospitalization, it should place the acquittee on conditional release if it finds that (i) based on consideration of the factors which the court must consider in its commitment decision, he does not need inpatient hospitalization but is in need of outpatient treatment and/or monitoring to prevent his condition from deteriorating to a degree that he would need inpatient hospitalization, (ii) appropriate outpatient supervision and treatment are reasonably available, (iii) there is significant reason to believe that the acquittee, if conditionally released, would comply with the conditions specified, and (iv) conditional release will not present an undue risk to public safety.

The court should impose such conditions on the acquittee which meet each acquittee's need for treatment and supervision and best serve the interests of justice and society.

The community services board serving the locality in which the acquittee will reside upon his conditional release should implement the conditional release plan and submit written reports to the court on the acquittee's progress and adjustment in the community no less frequently than every six months.

If at any time the committing court finds reasonable ground to believe that an acquittee on conditional release (i) has violated the conditions of his release or is no longer a proper subject for conditional release based on application of the criteria for conditional release and (ii) requires inpatient hospitalization, he may order an evaluation of the person by a psychiatrist, licensed clinical psychologist, or licensed psychologist registered with the Virginia Board of Psychology with a specialty in clinical services, such psychiatrist or psychologist qualified by training and experience to perform forensic evaluations. If the court, based on the evaluation and after hearing evidence on the issue, finds by a preponderance of the evidence that an acquittee on conditional release (i) has violated the conditions of his release or is no longer a proper subject for conditional release based on application of the criteria for conditional release and (ii) requires inpatient hospitalization, the court may revoke the acquittee's conditional release and order him returned to the custody of the Commissioner.

When exigent circumstances do not permit compliance with revocation procedures set forth above, procedures similar to those governing emergency custody and temporary detention pursuant to § 37.1-67.1 should be applied to permit confinement for evaluation pending the revocation hearing. Following the hearing, if the court determines, based on the evidence presented at the hearing, that the acquittee has violated the conditions of his release or is no longer a proper subject for conditional release and is in need of inpatient hospitalization, the court shall revoke the acquittee's conditional release and place him in the custody of the Commissioner. When any insanity acquittee on conditional release is taken into emergency custody, detained and/or hospitalized, such action shall be considered to have been taken pursuant to provisions governing insanity acquittees, notwithstanding the fact that his status as an insanity acquittee was not known at the time of custody, detention or hospitalization; detention or hospitalization of such acquittee pursuant to provisions of law other than those applicable to insanity acquittees shall not render such detention or hospitalization invalid. If a person's status as an insanity acquittee on conditional release is not recognized at the time of emergency custody or detention, at the time his status as such is verified, the provisions applicable to such persons shall be applied.

If an acquittee is returned to the custody of the Commissioner for inpatient treatment pursuant to revocation proceedings, and his condition improves to the degree that, within thirty days of resumption of custody following the hearing, the acquittee, in the opinion of hospital staff treating the acquittee, is an appropriate candidate for conditional release, he may be with the approval of the court conditionally released as if revocation had not taken place. If treatment is longer than thirty days in duration, the acquittee shall be returned to the custody of the Commissioner for a period of hospitalization and treatment which is governed by the provisions applicable to committed acquittees.

The committing court may modify conditions of release or remove conditions placed on release, i.e., release the acquittee unconditionally, upon petition of the supervising community services board, the Commonwealth's attorney, or the acquittee or upon its own motion based on the reports of the supervising community services board.

The acquittee's opportunities to petition for modification or removal of conditions should be limited to permit annual petitions commencing six months after the conditional release order is issued.

As it deems appropriate based on the report provided by the supervising community services board and any other evidence presented to it, the court may issue a proposed order for modification or for removal of conditions. The court shall provide notice of the order, and of the right to object to it within ten days of its issuance, to the acquittee, the supervising community services board, and the Commonwealth's attorneys for the committing jurisdiction and for the jurisdiction where the acquittee is residing on conditional release. The proposed order shall become final if no objections are filed within ten days of its issuance. If there is objection, the court shall conduct a hearing at which the acquittee, the commonwealth's attorney, and the supervising community services board have an opportunity to present evidence challenging the proposed order. The court may require a representative of the supervising community services board to present oral testimony at the hearing. At the conclusion of the hearing, the court shall issue an order specifying conditions of release or removing existing conditions of release.