Authority for the Study

SJR 324 (2005) requested the joint Commission on Health Care (JCHC) through its Behavioral Health Care Subcommittee to study the needs of individuals found not guilty by reason of insanity (NGRI) or incompetent to stand trial (IST). (It should be noted that SJR 324 originally requested a study by the Joint Legislative Audit and Review Commission, but the resolution was amended to direct the study to the Behavioral Health Care Subcommittee of the Joint Commission on Health Care.)

Background

Virginia is one of 24 states that have adopted a version of the McNaughten standard in allowing a NGRI defense. As noted in the Report of the Virginia State Crime Commission SIR 381 Not Guilty by Reason of Insanity, RD 31 (2004):

"To establish an insanity defense, the defendant must show that he did not know the difference between right and wrong or that he did not understand the nature and consequences of his acts." Once a defendant has been acquitted by being found NGRI, the Code of VA § 19.2-182.2 requires the acquittee to be placed in temporary custody of the DMHMRSAS Commissioner for evaluation. Within 45days, DMHMRSAS must make a recommendation to the committing Court to:

• Release without conditions
• Release with conditions
• Commit for inpatient hospitalization.

The Court subsequently holds a civil hearing to determine the disposition. Acquittees committed by the Court are placed in the custody of the DMHMRSAS Commissioner. A DMHMRSAS fact sheet on the NGRI system notes that/'restriction of liberties of acquittees is based on identified risks and clinical treatment needs [with] gradual increases in freedom based on successful completion of the previous, more restrictive level of privileges."

Study Findings

As of June 30, 2004, there were 222 NGRI acquittees held within a State hospital - 209 felon and 13 misdemeanant acquittees. DMHMRSAS reports that the "number of NGRI admissions has been increasing which decreases the number of short-term acute beds available given longer lengths of stay than most civilly committed individuals." DMHMRSAS reported that the median length of stay between State hospital admission and the first conditional release was 35.7months for felon acquittees and 12.7 months for misdemeanant acquittees. Given the intention not to increase the number of State hospital beds, the bed space that is available becomes quite valuable.

Issues related to the NGRI study were discussed during meetings of the Forensic Services Work Group (convened by DMHMRSAS). In addition, an adhoc workgroup was convened by JCHC staff to develop recommendations regarding the study provisions of SJR 324 including to:

• Determine appropriate treatment of acquittees
• Review/revise diagnostic categories as possible NGRI defense
• Examine discharge alternative to expedite return to community
• Provide coordination when release conditions are violated but hospitalization is not required
• Determine needs and impact of persons found incompetent to stand trial on mental health system.

The workgroup developed a number of recommendations which seek to facilitate appropriate treatment and eventual release of acquittees into the community. However, the workgroup also determined that a number of more complex issues could not be studied adequately within the one-year timeframe.

Options and Public Comments

The following options were proposed and public comments received regarding the options. The options that were approved by JCHC are shown in bold text.

Option I: Continue to address NGRI issues related to community- and hospital-based programs by including the review of Virginia's NGRI system on the Behavioral Health Care Subcommittee's workplan for 2006.

All 5 comments received supported Option I.
Virginia Association of Community Services Boards
Thomas L. Hafemeister, J.D., Ph.D.
Alan Reynolds
Steven Shoon
Bill Whittig, Ed.D., LCSW

Option II: Introduce legislation to amend the Code of Virginia, Title 19.2 Chapter 11.1 to clarify that voluntary admissions to State hospitals do not have to result in revocation of conditional release for NGRI acquittees.

Four comments were received in support of Option II.
Virginia Association of Community Services Boards
Thomas L. Hafemeister, J.D., Ph.D.
Alan Reynolds
Steven Shoon

Option III: Introduce legislation to amend the Code of Virginia, Title 19.2 Chapter 11 to remove language prohibiting psychiatrists and clinical psychologists who are employed by the Commonwealth from being paid for completing evaluations.

Two comments were received in support of Option III.
Virginia Association of Community Services Boards
Thomas L. Hafemeister, J.D., Ph.D.

Option IV: Introduce budget amendment to increase funding of the Discharge Assistance Plan to be used to facilitate release of NGRI acquittees into the community.

Two comments were received in support of Option IV.
Virginia Association of Community Services Boards
Thomas L. Hafemeister, J. D., Ph.D.

Option V: Introduce legislation to amend the Code of Virginia, Title 19.2 Chapter 11.1 to increase the time from 30 to 60 days that an acquittee is allowed to be involuntarily committed to a State hospital without automatically having his conditional release revoked.

Three comments were received in support of Option V. VACSB recommended an increase from 30 to 60 days "in light of the amount of necessary court paperwork and the ongoing workload" a recommendation that DMHMRSAS staff indicated as an acceptable change in the recommendation. Mr. Alan Reynolds recommended increasing the time to180 days noting that the longer timeframe "would allow an acquittee to avoid an overextended stay in the custody of the Commissioner, and it's the equivalent of the standard involuntary commitment order." This much longer timeframe could be reviewed if a second year study is initiated.
Virginia Association of Community Services Boards
Thomas L. Hafemeister, J.D., Ph.D.
Alan Reynolds

Option VI: Introduce legislation and accompanying budget amendment to amend the Code of Virginia, Title 19.2 Chapter 11 to either increase or remove the limitation on the fees paid psychiatrists and clinical psychologists for completing competency evaluations and to provide funding for the fee increase.

Two comments were received in support of Option VI.
Virginia Association of Community Services Boards
Thomas L. Hafemeister, J.D., Ph.D.

Option VII: Introduce a budget amendment to provide funding for competency restoration treatment and follow-up competency evaluations for adult defendants who do not require hospitalization.

Two comments were received in support of Option VII.
Virginia Association of Community Services Boards
Thomas L. Hafemeister, J.D., Ph.D.

Option VIII: Introduce legislation to amend the Code of Virginia, Title 19.2 Chapter 11.1 so that consideration of violations of conditional release may be considered by the Court on an expedited basis.

Two comments were received in support of Option VIII.
Virginia Association of Community Services Boards
Thomas L. Hafemeister, J.D., Ph.D.

Option IX: Continue to consider and support initiatives designed to divert individuals with behavioral health care needs from the criminal justice system and to provide treatment for individuals who are not diverted.

Three comments were received in support of Option IX.
Virginia Association of Community Services Boards
Thomas L. Hafemeister, J.D., Ph.D.
Steven Shoon