Vermont Legislature SmartTranscripts:

[Speaker 0]: Welcome, folks. This is Haskell for our Johnson and Institutions Committee. It is Thursday, April 2. And we are going through background information in terms of the world of forensics and what it means, how it plays out in different ways. And this is a way for us to become educated in that world, because when there's a proposal for a forensic facility to be housed in a in corrections facility, there's a lot of implications in that. So I just want time with our vote to cancel to have a real back and forth conversation so we can as many, understand what we're dealing with in the world of forensic. So welcome, Eric.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Thank you very much. Thank you. Eric Fitzpatrick with the Office of Legislative Council. Nice to see everybody this afternoon. As the chair said, here to talk a little background on the forensic facility bill that is, I think, passed third in Senate yesterday. So is on its way here, if it's not here already, but certainly It's here next week. Right? Well, it's on the near horizon then. I think it's one of those issues that is complicated, probably more so legally, but also in my area of expertise, certainly not medical, but there's a medical component of it too, that I think you're gonna hear from witnesses about. And interestingly, that's in some definitions, the word forensic is defined in several different ways, depending on the context. But one of them is sort of this intersection between medical issues and criminal justice issues. It's kind of this intersection where they meet. And just thought it was interesting to hear. I pulled a couple of legal definition Or actually, just Oxford and Cambridge definitions of forensics relating to scientific methods of solving crimes, including examining the objects or substances that are involved in crime, denoting the application of scientific methods and techniques to the investigation of crime. They're sort of similar. That kind of gives you a flavor of it. And then I also pulled it, just since we haven't Not looking at the bill quite yet, but I thought, well, I wonder what other state statutes say about forensic facilities. So like for Florida's forensic facility, a separate and secure facility established within the department or using department funding to serve clients who have been found not guilty by reason of insanity or income to stand trial. Who took it part? That in Florida was the Department of Children and Families. Interesting.

[Rep. Mark (unidentified)]: That's a

[Speaker 0]: mixed Yeah. He said it Oh. Just But it's not just for juveniles then.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Interesting, the next sentence says No, it's not, because the next sentence, the one defining department as Department of Children and Families, The department is responsible for the treatment of forensic clients who have been determined incompetent proceed due to mental illness or who have been acquitted of a felony by reason of insanity. So maybe there's some cross jurisdiction there, because that's not limited to juveniles, based on what I found. For some reason, that department in Florida deals with that population. But the term, nevertheless, is right on point to the bill that's gonna be coming this way. And it's sort of, I think, almost the first question that often comes to people's mind when I bring that up is, well, what happens to those folks now? Those incompetent to stand trial or not guilty by reason of insanity? Or, well, let me just say that that's what I want to describe as kind of our foundation. What happens now to this population that you are about to spend a lot of time thinking about how they should be treated going forward. And that sort of coincides with another population who aren't forensic.

[Speaker 0]: Is there anyone waiting to come into our Zoom for Conor Casey? I'll

[Eric Fitzpatrick (Office of Legislative Counsel)]: send him a quick text.

[Speaker 0]: He's Zoom link this morning. Do we have the same we have the

[Claire Neal (Senior Policy Advisor, DMH)]: same Zoom here?

[Speaker 0]: So you may I don't want I'm sorry. No.

[Rep. Amy (unidentified)]: No problem.

[Speaker 0]: You're sending him a text, Troy.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah.

[Speaker 0]: So you may have some other kind of case. I'll keep that on. I'm

[Eric Fitzpatrick (Office of Legislative Counsel)]: So one of the most significant differences, and it's particularly most interested for this committee, I'm sure, is that right now, people in that population are treated by the Department of Mental Health. In the forensic, portion of the population that it deals with is treated by the Department of Corrections. So that's one of the top two or three policy matters that is a central part of the forensic facility bill, and which is would be a change from current law. Because right now, a forensic facility does not exist. So this proposes to create one, and it's proposed to create one. It tasks the Department of Corrections with creating. Let's think for a minute about what does happen right now. Let's say that you have someone who was found either not guilty by reason of insanity or incompetent to stand trial. And keep in mind for a moment, because this will be helpful down the road, if you remember that those are two different things. Competency

[Rep. Mark (unidentified)]: to

[Eric Fitzpatrick (Office of Legislative Counsel)]: stand trial and not guilty by reason of insanity are not the same.

[Speaker 0]: So it might be good to go through that, because this is new. For some folks here, the difference.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Right, absolutely, because I don't know

[Rep. Mark (unidentified)]: the difference. So thank you

[Rep. Amy (unidentified)]: to the folks.

[Eric Fitzpatrick (Office of Legislative Counsel)]: There is. One of the fundamental difference is that they both involve the mental health status of a criminal defendant. They have that in common. Typically. What's different is the moment in time at which you're asking, what is the mental health status of the defendant? Not guilty of every use of insanity has to deal with the defendant's mental health status at the time of the criminal offense, at that moment. And if at that moment, the defendant either cannot understand that their conduct is criminal, or they can't conform their conduct to the requirements of the law. So in other words, even if maybe they could understand that their conduct was criminal, they still lack the ability because of a mental illness or another mental health condition to adapt to conform their conduct to what the law requires. Either one of those two things happens. Then, in legal terms, you cannot have the required mindset to commit a criminal offense, because you lack the mental health ability to form criminal intent. So, when that happens, the person may, and typically does, concede that the criminal conduct happened. But they can't raise not guilty of a reason of insanity as a defense. And if the defense is successful, then they are not convicted of the crime, even though they committed whatever the underlying conduct was, because they didn't have the right mental intent. And that also, sort of a legal consequence of that, not guilty by reason of insanity is a complete defense. In other words, you can't be tried for that again. Regain You that mental health status, because it all had to do with what happened at that moment in time. And if you weren't able to understand that what you're doing was criminal, or unable to conform your conduct at that time, then that's never gonna change. That was a moment in the past. And therefore, you can't ever be convicted of that crime. It's done. Very different than competency to stay on trial. That has to do with what's your mental state at the time that the trial is gonna be taking place. And that has to do with whether or not the defendant can understand the nature of the criminal charges against them, or at least they can adequately participate in their own defense. That is a different thing, because you might still have had the correct men to intend at the time of the offense. If you're unable to understand the nature of the charges against you at the time of the trial, that's a fluid concept. So in other words, it's as you will see, we'll be talking about a lot in the next few weeks. Competency can be restored. It's different than not guilty by reason of Sandy. That was that one moment in time. If you didn't have it, complete defense, you can never be charged with it again. Competency, on the other hand, through treatment or time or whatever it might be, your competency could be restored. And if your competency, even if you are found at one point in time not competent to stay on trial, that can be restored. And when that happens, the criminal charges can be

[Speaker 0]: continued against you. So questions. How complicated is that, Charles?

[Rep. Amy (unidentified)]: And I assume you're going to walk us through currently who, what, when and how the process.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah, exactly. So

[Speaker 0]: the competency issue is one bar and the insanity issue is the other bar. They're very different. You really have to understand that difference. And someone can gain competency back and they can have it for maybe a day.

[Eric Fitzpatrick (Office of Legislative Counsel)]: It can come and go. It can

[Speaker 0]: come and go. But the question is, competent to stand trial means they've been charged And when would they be able to go to trial and understand what is happening to them? Right. That's what it really means to understand the process and understand what's happening to them.

[Eric Fitzpatrick (Office of Legislative Counsel)]: And you'll see once you look at the bill, that those two different populations, for So I don't have to say the long phrase every time, as it happens, guilty by reason of insanity, has a acronym NGRI. NGRI. NGRI. You often see it referred to as, the NGRI dependence. But those two populations, the NGRI and the competency, they both proposed to be treated at this new forensic facility. But the treatments and the processes are different, because they're different circumstances. Remember, because there's one population which, through treatment, can then go back and have their criminal trial because their competency can be restored, right? That's that population. So they, while they're at the facility, kind of getting ahead of myself, but it is nice to sort of have that foundation, which is that while at the facility, they are going to be receiving what's known as competency restoration services while they're there. That's the idea. And the idea is that while those services are going on, they may have their competency restored, and then they can go back and their criminal trial can proceed.

[Speaker 0]: So those services are basically medical services and therapeutic services. They're not security services.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think they're clinical.

[Speaker 0]: They're clinical services.

[Rep. Mark (unidentified)]: You've said that there are different parts of this. You're not going to go in-depth about the medical stuff. Are we going to talk at all today about the intersection of that issue, whether these folks are overseen by DMH or DOC? I'm marking that. I

[Eric Fitzpatrick (Office of Legislative Counsel)]: just want

[Claire Neal (Senior Policy Advisor, DMH)]: to know the

[Speaker 0]: basics right now, where they go now and what the process is when someone of those retain competency or if they are deemed not guilty by reason of insanity and GRI. What happens currently? I will figure all that out.

[Rep. Mark (unidentified)]: Well, I guess then, yeah, can we discuss within the current context how those two different groups are treated within facilities where they're housed now? Is that it today, is that also a parka?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, as far as how they're treated within DMH, I don't have a huge amount of knowledge about that. I think it's gonna be DMH folks, and Katie McQueen in our office has some more knowledge about that. I can describe generally what the different results are for those two populations, and how it may pan out clinically, and what their treatment programs are like, that I have less knowledge about. Right. So step back again for a moment, and let's think about, all right, what's the situation now currently, without whatever was proposed to be in S-one hundred ninety three? You have DMH custody and treatment, and there's actually, when we talk about people that are incompetent to stand trial, or not guilty by reason of insanity, let's refer for a moment, because I was just saying, that's more related to the criminal justice system, right? So let's refer to them as the forensic population. It's the forensic population that's one pathway into DMH custody. There's another pathway that has nothing to do with the criminal justice system that comes through the family division of the Superior Court. And that is another pathway into DMH custody. And those folks are people who can be described similarly. They have been found by a court to be dangerous to themselves or others as a result of a mental illness. And that's a crude How many

[Speaker 0]: are products?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I'm not. Nope. Could be

[Speaker 0]: a family member.

[Eric Fitzpatrick (Office of Legislative Counsel)]: It could be a doctor. It could be

[Speaker 0]: Could be one of us.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. And it's interesting, there is a definition, and I'm not sure what it is. Think it's interested party. An interested party can file off. Although, I almost think that there's a bill this year that changed that. I noticed that. Was like, who? I hadn't been involved in the bill itself, but I think I heard Kate or somebody talk about it. Because it hasn't, and currently, it's very broad. I don't think it's not passed and been signed yet, don't think. But it's percolating. Percolating. But nevertheless, the point is, as you were saying, Representative Emmons, it's not a crime. It's somebody, some interested person, medical person. I think actually, now that I remember correctly, it has to be a medical person going forward. That's the change. Could have been a family member or something in the past. But they go to the family division, and they can file this petition. And there's evaluations, there's psychiatric evaluations, there's hearings that have to take place, there's specific time limits about how these hearings have to occur, and there's a finding that the court has to make. And that finding, either that the person is or is not what's known as a person in need of treatment. And that is defined as the way I just said it. The person in need of treatment is someone who, as a result of a mental illness, is a danger to themselves or others. That's the gist of it. And there's more verbiage to that, but that's the essence of the principle. They're because of a mental illness, dangerous to themselves or others.

[Speaker 0]: So the court determines that. Correct. So where does the person go? Because it's an involuntary placement.

[Rep. Mark (unidentified)]: It is.

[Speaker 0]: It's not voluntary. It is an involuntary placement that is ordered by the court. Correct. It's a civil, not a criminal, civil procedure.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah, in the family division.

[Speaker 0]: Family division. Where do they go?

[Eric Fitzpatrick (Office of Legislative Counsel)]: They go to the Department of Mental Health, where they are placed ordered by the court into the custody of the Department of Mental Health. They could be They're state custody. Yes. It could be an order of hospitalization. They're having enough care that they need that sort of acute level of care, then they could be hospitalized. Could potentially be an order of non hospitalization, an O and H, they could be getting treatment in the community. And as well, the person can, depending on their clinical needs, they could move from one setting to another while they're in DMH custody. In other words, it could be under a hospitalization, could be clinically decided that they're not in need

[Rep. Mark (unidentified)]: of

[Eric Fitzpatrick (Office of Legislative Counsel)]: hospitalization anymore, so then they could be moved to treatment in a community setting or on an order of non hospitalization. That could all happen while the person is under DMH custody. And again, that person never had any contact with the criminal justice system.

[Speaker 0]: So if it's a order of hospitalization and they're under state custody, the civil, Are they automatically housed at our state hospital in Berlin? Or our beds that we pay for down at the Brattleboro Retreat or the Rutland Hospital, where they have some state run facility that is run on behalf of us, somewhere else on behalf of the state.

[Eric Fitzpatrick (Office of Legislative Counsel)]: That's another one of those questions about what happens when the person's in custody that I'm not sure of the answer to, but I bet you could get an answer.

[Claire Neal (Senior Policy Advisor, DMH)]: Claire Neal, senior policy advisor for DANH. If a person is hospitalized Can speak louder? Yeah. If a person is hospitalized involuntarily, they would receive care at one of our designated hospitals. So that's six hospitals across the state. It does include VPCH, but it also includes private hospitals that have been designated to provide involuntary care. Sorry, was there another question? Think I

[Speaker 0]: Well, you're at the state hospital in Berlin.

[Claire Neal (Senior Policy Advisor, DMH)]: You can be.

[Speaker 0]: Because this is new to folks. Don't know the beds out there for mental health. We have 25 beds in Berlin State Hospital. We have 14 beds for the retreat. So the last 14? Adult. Adult. Yeah. I'm not getting into kids. That's adult. 14 at the Brattleboro Retreat. Those beds were built to replace when we lost the state hospital in Irene. And then we had six beds in Rutland.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Had or half?

[Speaker 0]: We still do. It was all part of replacing the state hospital. Okay. So if you add that all up, 45 beds, you add that all up. I think Right. But to replace the state hospital I'm thinking to replace the state hospital. And then the secure residential kicks into that too, but I don't wanna go there. Yeah. So when we replaced the state hospital, those were the three big pieces to replace the state hospital we lost. So then on top of that, what other designated hospitals would hold court ordered folks for hospitalization? I know you're thinking, sending out an email.

[Claire Neal (Senior Policy Advisor, DMH)]: I just fully sorry, I wasn't planning to

[Eric Fitzpatrick (Office of Legislative Counsel)]: When

[Rep. Amy (unidentified)]: it's appropriate, could I give you a real life scenario and ask you to walk through what the process would be?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah, give it a try.

[Rep. Amy (unidentified)]: An individual attempts to commit suicide twice, one with pills, one with alcohol. Still living at home. Third attempt, he runs his car off the road. He had been drinking, but he verbally says he did it to kill himself. He needed to be taken to Dartmouth Hospital because he was injured. His parents would like him to be helped, but he's voluntarily at Dartmouth Hospital being checked out for multiple days. They send him to Valley Vista. He doesn't like it there. And I was released. I would say it's pretty obvious that he's a danger to himself. Frankly, he's a danger to his mother because of the way he's communicated to her. When, how is an individual treated in that situation as an adult?

[Speaker 0]: Are those the first? 24. Either an adult.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Do you mean like when does it become involuntary or I'm trying

[Rep. Amy (unidentified)]: to understand the system. I mean, right now it's voluntary, It's but not voluntary. They have to go through the court. I understand, but he hasn't gone through the court. How do you get him so that he goes before someone who's in power to determine whether he is a forensic situation or not? How do you get to that point? You'd have

[Eric Fitzpatrick (Office of Legislative Counsel)]: to have somebody. It could be a family member currently or a medical professional file a petition in the family division of the superior court. Even prior to that, there's also an, depending on how close that situation is to, in other words, let's say a law enforcement officer was involved really at the moment while the person was attempting suicide, also, law enforcement has an ability to put a hold on somebody immediately, very short term, and get them into custody, and get them in, I think it's called an evaluation. There's a very short term, first time psychiatric evaluation to determine if the person has to be done within seventy two hours, and make a first determination as to whether the person, even whether there's probable cause to think that the person might be dating themselves or others. In other words, before the court has made the final decision. But there is that avenue, and someone is gonna have to Petition. Yes. But it's also possible in that very life threatening, sort of dangerous situation, there is an ability of an entity taken into custody by law enforcement and get them into custody right away, provided that they can get a psychiatric evaluation very quickly. And so in other words, you don't have to wait in all circumstances for the first open court day, is what I'm saying. There is that up in an emergency situation. There's also an epidemic. But yes, one question Because the law officer saw the activity of the individual and deemed it Or potentially, a family member saw it and called law enforcement and was able Law to Yeah, but somehow they were

[Rep. Amy (unidentified)]: family law enforcement can

[Eric Fitzpatrick (Office of Legislative Counsel)]: observe activity that But even after the law enforcement officer observes or is contacted, somebody's gonna have to file that petition with the court, because if you're gonna continue to hold the person, it's all a very substantial deprivation of somebody's liberty, which is a constitutional issue. So that's why you have to have very specific court procedures to make sure that there's evidence to be able to hold somebody. Otherwise, you're depriving somebody at liberty without depressors law. Yes, they do. So you have the answer

[Speaker 0]: for outside, what other hospitals would

[Claire Neal (Senior Policy Advisor, DMH)]: be designated doubled? So it's UPMC.

[Speaker 0]: Did you speak up?

[Claire Neal (Senior Policy Advisor, DMH)]: UPMC, the Brattleboro Retreat, VPCH, Vermont Psychiatric Care Hospital, Rutland Regional Medical Center, Windham Center and the VA. There are 167 total beds for adults statewide. Do

[Eric Fitzpatrick (Office of Legislative Counsel)]: you know what our current occupancy is?

[Claire Neal (Senior Policy Advisor, DMH)]: This is from, in February, 156 were occupied, but I can get more

[Eric Fitzpatrick (Office of Legislative Counsel)]: That's correct. Thank you.

[Speaker 0]: So someone has gone through a situation. They've gone through the court. And this, I think, is gonna get more to Amy's Yep. They've got a petition. Well, it's been a petition to hold someone or not hold, but to receive services. And the court deems that the person really needs to be hospitalized. So let's say they go to our state hospital. They are there involuntarily. They are under state custody. And then what happens? I know this is probably beyond your lane.

[Eric Fitzpatrick (Office of Legislative Counsel)]: It is. But I did, this may be going a little bit further down the timeline than what you're thinking, but it is also gonna be relevant when we get to the forensic lane, criminal justice lane. Because I just, I happened to speak, I gave Karen a quick call, like phone a friend before I came at lunchtime. I'm like, I don't know. That's right. So Karen told me a little bit about, because I was curious about what's the perceived gap that the forensic facility bill is trying to fill? One And of the things that she indicated to me is because, as you're mentioning, chairmans, after the person's been treated for a while, well, what happens if the person, it's determined that the person perhaps is not dangerous to others anymore? Or they aren't at what Karen described at least as needing an acute level of care. And that's a clinical, medical determination. And there's a connection between that and the ability of the facility to get Medicare and Medicaid dollars. So that if it is clinically determined that the person no longer needs this acute level of care, then they can't stay in the hospital setting anymore. So they

[Speaker 0]: lose the Medicare or they lose the kit?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I'm not sure.

[Claire Neal (Senior Policy Advisor, DMH)]: So all of our hospitals are Joint Commission accredited and CMS certified, and the CMS certification is based on the appropriate clinical placement. So it is Medicaid, and it would not just be for the individual, but the hospital could lose its certifications as well.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Those Medicaid payments to the hospital. Which is less of an issue with this group of people that we started talking about, people that have never been involved in criminal justice. They came in through the civil system, and it doesn't raise the same issues if the hospital is making clinical decisions about, well, this person doesn't need treatment anymore, so we can just release them to a lower level of care. Maybe they don't need care as much at all anymore. Not to say that that's not important, but just to say that it doesn't raise the same issues as if that same person had committed a homicide and had been found not guilty by reason of insanity. If that's the situation, and then the hospitals clinically determines that the person doesn't need acute level of care anymore, and can't be in the hospital anymore, needs to be stepped down somewhere, raises different questions, because at that point in time, where does that person go? Particularly if they might still pose some level of dangerousness. But remember, it's resting on the fact that it's because of a mental illness. And someone can be not guilty by reason of insanity or incompetent to stand trial for reasons other than a mental illness. So that is part of the gap that's proposing to be filled by forensic facility legislation. They can treat people, or they would treat people who are either incompetent to stay on trial or not guilty of everyone with insanity for reasons other than a mental illness. Right now, those folks, because of the definition of person in need of treatment that I mentioned, that's based on a mental illness, because of that, they wouldn't be eligible for that DMH hospitalization.

[Speaker 0]: Mary, do you want to weigh in?

[Mary A. Morrissey (Member)]: Well, I'm very aware of a case where, and forgive me, I'm losing out of my voice, thank you teammates. Anyway, of a case where a young man, some very threatening behavior to neighbors and other people, he was determined that he needed to be evaluated. He was evaluated and I think was kept for a couple of weeks to possibly get some care or whatever. Then was determined that I guess he was all okay. Goes back into the community, threatens his family members, I mean know really threatens, and I know there were some criminal kind of charges from that, but nothing ever happened. So how do you get, and then ultimately he was let out again, I think he was there for a very short, short time, again hospitalized, was let go, and then murdered someone. So how do you try to I know you're looking at their liberties, their personal liberties, and not overstepping, but when does it become public safety and how do you, you know, safety for him, but safety for public, his family, you know, everyone, how does that happen? Right now, I think he's in somewhat of a hospital type situation, and they aren't really looking to go forward. They can't go forward with the case, and so it's kinda just in limbo. There's nowhere really to put it. So you don't know if there really is. There's a threat to others there. So how do you kinda get your arms or the system gets its arms around safeguarding from folks without, you know, again, I know it's personal abilities, you don't want other stuff either, but there's a real fine line there.

[Eric Fitzpatrick (Office of Legislative Counsel)]: True. It's a difficult balance, but you're right. That system is trying to balance both public safety, community safety, with a person's liberty interests, and at least legally speaking, way that that has kind of resolved itself, is to require that a person in that situation can be confined against their will, as long as the court finds that there's what's known as clear and convincing evidence that they're a danger to themselves or others. So in other words, that's

[Speaker 0]: not It's a pretty high standard.

[Eric Fitzpatrick (Office of Legislative Counsel)]: It is. It's not as high as beyond a reasonable doubt. So that's kind of where they've set him. And can

[Mary A. Morrissey (Member)]: the person decide he doesn't want to be evaluated? Because I know there was the question within this case that he didn't really want to go forward, so it's just kind of hanging out there, shall we say, and it's not going in any direction, so it's, and again, the forensic facility in part was brought up at the time this all kind of started, and was involved with it as well. That was why it was so that you would have a safeguard place for folks that were really struggling, and, you know, also the public safety side of it, and it's it's a very difficult

[Speaker 0]: That's what we're gonna be grappling.

[Rep. Amy (unidentified)]: So Yeah. But let me try So a family chooses to petition. And if the person is an adult,

[Speaker 0]: person who is

[Rep. Amy (unidentified)]: concerned about refuses to cooperate. So, if they're not willing to go before the court for evaluation, do they have to commit a crime before?

[Speaker 0]: The family will go before the court.

[Rep. Amy (unidentified)]: Understand, but they petition. Right, the family goes The adult says, I'm not going participate. I'm not going to be evaluated.

[Mary A. Morrissey (Member)]: But that's not so easy. I'll tell you another story I'm involved with recently right now for a constituent. The courts had asked for this particular person to be evaluated. He's still out in the public. Things have ramped up. He's been arrested numerous times. He's now on office meds on all kinds of substances to fulfill that need. He's threatened and physically has done some harm to some family members. I mean, it just keeps snowballing bigger and bigger. And what do you do? I mean, I was just on the phone this morning with several different agencies to see if folks can connect the dots to even where do you keep him safe and where do you keep the public safety again. So it's not an easy simple, and the courts are kind of struggling because they filed a petition, I think, filed something, but the other agencies aren't looking at it either.

[Speaker 0]: So, Eric, in a situation where a family member has petitioned the court, the civil case, petitioned court, it's the court that determines where the person what then happens to that person. Do they need the person actually in front of them at the court to make that determination?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I don't think so. I don't think so. I think it all depends on what other evidence is presented, and that the evidence of their mental illness, because remember, requires danger to self or others as a result of a mental illness, that can be presented clinically by medical professions. Now, the

[Speaker 0]: court orders that the person needs to be clinically evaluated and housed within one of our beds. How does that person then get there? Do they depend on family members to bring them there? Or how does that transaction work? And that may be a question more for DMH than you, although.

[Eric Fitzpatrick (Office of Legislative Counsel)]: In some situations, the person might already be in custody, because as I mentioned, law enforcement has the authority to, in an emergency situation, to arrest somebody right away. Or I should say,

[Speaker 0]: it's not

[Eric Fitzpatrick (Office of Legislative Counsel)]: technically an arrest, because there's no problem causing a crime. Right, yeah, exactly. But place someone in custody is a better way to put it. So they may be in custody already. But if they're not, then I'm not certain. It's an involuntary order. So the person refuses, presumably there is the authority of the law enforcement officer or somebody to place them in custody, but they're not depending upon the person to agree with them. That winds up with my personal story. I was desperate for my son in Connecticut and calling everyone I could. He can't do anything. He's an adult. That's why I understand.

[Rep. Amy (unidentified)]: That's why trying to understand what Vermont is. Right.

[Speaker 0]: But they can have a whole different law. I understand.

[Rep. Amy (unidentified)]: So I'm trying to understand Vermont. But until they break the law, they don't wanna participate. How do we help them? That's my question to you.

[Rep. Mark (unidentified)]: Right.

[Rep. Amy (unidentified)]: Currently.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. Well, again, the civil order doesn't require illegal conduct. It's danger to self or others. So that person can be placed in custody, and a court could find that the person could be ordered subject to involuntary inpatient psychiatric treatment on the basis of them being a clear and convincing evidence of them being a danger to themselves or others. It doesn't require that they've committed a crime.

[Rep. Amy (unidentified)]: I hear that.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yep, that's true. Now, again, the chair was saying, that's a moderately challenging evidentiary threshold to meet. But that's the balance that you're talking about. Yes, we're gonna permit someone to be involuntarily confined at times, even though they haven't committed a crime, because that's part of the reason for this. If the person's committed the crime, we'll get to next. Remember, there's already been an allegation that they've engaged in illegal conduct, and in some cases, beyond a reasonable doubt of evidence. This situation, no crime. So just to give everyone a refresher of the three general levels of proof beyond a reasonable doubt is in criminal cases, right? If no reasonable mind would find anything else other than that, that's the highest. The lowest in most civil cases is called preponderance of the evidence. That just means more likely than not. And just to be means a degree of evidence that, while not sufficient to free the mind wholly from all reasonable doubt, is still more convincing than the opposing evidence and is sufficient to incline a fair and impartial mind to one side of the issue rather than the other. That's preponderance. That's the lowest. The middle one, though, the one that applies here, which is, let's say you do have this person who's presenting a danger themselves or others, haven't been convicted of any crime. What does the court have to find? What does the state have to show? Clear and convincing evidence, which means evidence indicating that the thing to be proved is highly probable or reasonably certain. So more than preponderance, not beyond a reasonable doubt. And that's the balance between you're depriving someone of their liberty against their will, but you also have public safety to be concerned about how do you balance that. So the way to do it, the way it has been decided is that we're gonna require some substantial level of evidence before a person can be voluntarily confined, assuming they haven't committed a crime.

[Speaker 0]: So that's on the civil side.

[Rep. Amy (unidentified)]: Let's

[Speaker 0]: shift over to the criminal side. So let's say a person is charged, they're right in, they're charged with a crime, whatever it may be. And at the arraignment, the court wants a evaluation, mental health evaluation. Doesn't mean felt maybe competency to stand trial or in saying at the time of the crime, they also just ask at times for evaluation, or is it always an evaluations for competency or insanity at the time of the crime?

[Eric Fitzpatrick (Office of Legislative Counsel)]: The most that I've heard is when someone raises the issue of competency, or when the defendant indicates that they're gonna raise an insanity defense. Any party, the prosecutor, the defense, the court, anybody can raise competency at any time. And that's because competency is a threshold issue. It can't be tried for a crime if you're incompetent. And to do so would be unconstitutional. So that if anybody thinks that there's reason to believe that the person's not competent, they have to bring it up. That's when I've most heard that the evaluations

[Speaker 0]: take place. So right now, someone's being ringed and one side or the other raises the issue, let's say, competence. The court orders an evaluation to determine competency.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Right.

[Speaker 0]: Where does that person go right now for that evaluation?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I know that, at least from the statute, that it can be the state hospital, right? But I don't know necessarily that it has to be.

[Speaker 0]: Could be a non hospitalization?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think so.

[Speaker 0]: So there could be a hospitalization order. There could be a non hospital order to determine, I'm just gonna say competency. So if it's a hospitalization order, would they automatically go to one of our state hospital beds, be it in Berlin or Rutland for the retreat? Or would it go to some place like a Wyndham Center? Or would it be more out of state hospital and retreat in Maryland?

[Claire Neal (Senior Policy Advisor, DMH)]: It could be any designated hospital based on their clinical need. GCCH and Rutland provide level one care, which is a different staffing pattern, a more intensive staffing pattern. But other than that, if somebody's on

[Eric Fitzpatrick (Office of Legislative Counsel)]: the board, they

[Claire Neal (Senior Policy Advisor, DMH)]: can be served at any designated hospital.

[Speaker 0]: For the evaluation? Yes,

[Claire Neal (Senior Policy Advisor, DMH)]: but they don't have to be in the hospital to be evaluated. That

[Speaker 0]: would have to be a non hospitalization order, but if they had a hospitalization order, they would have to be in a hospital, right? Yes, it could be evaluated while receiving admission. There's one of those. And then once that evaluation is done at the hospital, medical, the hospital, where does the person then go? Do they go back to court? Where do they go? Do they stay at the hospital? They've been charged, but there was a defense raised, or maybe the judge was concerned. This doesn't feel right to me. I wanna have a mental health competent and evaluation.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, can depend, where they are physically, if that's what you mean, can depend on the nature of the criminal case. It could be that if they were charged with a homicide or another offense that was punishable by life in prison, then they might be actually being held in a

[Speaker 0]: correctional facility while this is going on. How they evaluate charges?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes, absolutely. On the other hand, if it was more of a situation where it's a low level property crime, where we know that these things do happen also by people who aren't necessarily competent to stand trial in that sort of situation, person can't be held without bail. So chances are they go back to the community.

[Rep. Mark (unidentified)]: I mean, I think it's

[Eric Fitzpatrick (Office of Legislative Counsel)]: still your line of questioning, but yeah.

[Rep. Mark (unidentified)]: Does the way the evaluation is done depend on where the person is? And just to use your example, if somebody has committed a homicide, they're housed in DOC, are the same folks who would be doing that evaluation in a hospital doing it in DOC? Is that then going to be called path or whoever the provider is in DOC?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Another question, that's a good question that I don't Sorry, know the answer

[Rep. Mark (unidentified)]: I keep getting out of my way.

[Brian Minier (Senior Advisor, DMH)]: Brian Minier, Senior Advisor for DMH. DMH has a contracted a third party provider for competency evaluations. It's determined by the court, but a competency evaluation is only a legal evaluation. It doesn't provide any diagnosis or treatment recommendation or really any clinical recommendations for a course of treatment or anything like that, it's just the legal determination of are you competent?

[Rep. Mark (unidentified)]: Yeah, and you said outside, so unaffiliated in a

[Eric Fitzpatrick (Office of Legislative Counsel)]: way, and would be the same folks doing this wherever the person was? Yes,

[Brian Minier (Senior Advisor, DMH)]: a third party in Novotel that provides these for a contractual DMH person.

[Rep. Amy (unidentified)]: Okay, thanks.

[Speaker 0]: So say it's a property crime. Mhmm. Okay? And the court has ordered an evaluation. They go to, let's just say, the state hospital for simplicity. They're evaluated over time and then it's determined that they're competent.

[Eric Fitzpatrick (Office of Legislative Counsel)]: They are competent.

[Speaker 0]: They are competent. So who determines where they go next? Is it DMH that determines where they go next? The person I have to go back to court? Because this usually happens at arraignment, just doing something real simple at arraignment.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, I think if the court, if there's a finding after the evaluation that the person is competent to stand trial, then that was the finding of whoever the third party was, the contractor or whoever else that made that decision, then that means the criminal trial can proceed. Where they are is dependent upon, I'm gonna presume, low level property crime, there was no bail, or rather they can't be held without bail, so maybe they paid their bail and they'd be wherever they were. There wouldn't be any restrictions necessarily on their whereabouts.

[Speaker 0]: So it really depends what happens at the court on that arraignment, what the court could put on conditions for the person, then they would have to comply with that. But it would be DMH that would determine if they were at the state hospital. There'd be a third party or staff at DMH that would do the evaluation and they would determine this person over time. This person's now competent to stay in trial. And then mental health would determine to release the person from the state hospital. Is that correct?

[Claire Neal (Senior Policy Advisor, DMH)]: It would be unrelated decisions. So, the third party would do an evaluation to determine competency or incompetency. Separately, the care provider would do a medical evaluation to determine where the best clinical placement was, but they don't inform each other.

[Speaker 0]: So it would be a clinical placement after that? Would they ever be just released back to the community?

[Claire Neal (Senior Policy Advisor, DMH)]: They could be if they don't qualify for a placement, yes.

[Speaker 0]: If they don't qualify for a clinical placement. And then if they were released back to the community, then they still have to go back to the court because they've had conditions on their release like everyone else, then they would have to go back to the court at a later date for their sentence or trial or whatever.

[Eric Fitzpatrick (Office of Legislative Counsel)]: As you said in that hypothetical finding was that they were competent to stand trial, then yes, criminal proceedings would continue.

[Speaker 0]: So if there was a major crime and say that bail was set and the person needed to be evaluated for competency. They were held in a correctional facility because there was bail imposed, and it was a serious crime. So they end up being a detainee. Mhmm. Third party does an evaluation. Is there any after that, any clinical determination where the person should be harassed, or is it the criminal charge and the detainee being held with bail? Is that what is the decision versus a clinical decision of where the person is housed?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I wouldn't think that the clinical decision, if the person is found confident to stand trial, then I don't think there's any reason for there to be the person that isn't going to be held by DMH anymore, as far as I know, because it's not been determined that the person needs treatment.

[Speaker 0]: I think if they're a detainee, they're being held

[Rep. Mark (unidentified)]: By DOC.

[Speaker 0]: By DOC, bail against imposed, and they hadn't met bail. So, even if they are then deemed competent at

[Rep. Mark (unidentified)]: some

[Speaker 0]: point, they would stay incarcerated as a detainee unless they made bail.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Right. So, with the usual rules related to bail and whether or not they're detained or not would continue to fly. And the person would then move along toward trial.

[Speaker 0]: And becoming competent. Finding out what?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Right. That's always possible. That's possible.

[Rep. Amy (unidentified)]: Of course. And maybe you've already said it, but if he's determined, he or she's determined to be incompetent, but murder a person, where do they reside? Allegedly.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, they, yeah, I mean, if they know- That's gonna be important.

[Rep. Amy (unidentified)]: You still gotta go to the court, right? Even if they saw it happen.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Not if they're incompetent.

[Rep. Amy (unidentified)]: That's my question. So if they're found to be incompetent, but they did the crime, where are they housed?

[Eric Fitzpatrick (Office of Legislative Counsel)]: So that, in a way, is a nice segue, because we were just talking about what if the finding was competent, right? We sort of went through that a little bit. Let's say, as you described, finding instead was, in other words, they can't understand the charges against them or unable to participate in the defense. So this evaluation that you mentioned comes back with a finding of incompetence. What happens then? Then the court has to have a hearing. And at this hearing, the question is, same questions is where it starts to become clear, but the proposal is for the forensic facility, because right now, this is under existing law, right? That we're talking about what would happen. The person has to be determined whether or not they are a person in need of treatment. Same definition that was used in that civil context. Remember the person that comes, a family member or a doctor. Same issue. Is the person, as a result of a mental illness, a danger to themselves or others? And if the answer to that question is yes, then they get committed to the Department of Mental Health for the same kind of treatment that we were just talking about. Could be an order of hospitalization for treatment in a hospital, could be an OMH for treatment that's not necessarily in a hospital setting. But that is the question, are they a danger to themselves or others as a result of a mental illness? And that's a finding that, sorry, a hearing that the court is required to have after a finding that they're either not competent to stand trial or not guilty by recent insanity. That next hearing has to happen. And the difference, too, is that that hearing, in this case, is in the criminal division. Remember, in the other setting, with respect to civil folks, that hearing's in the family division. There's a criminal division here. But it's the same legal question. Are they, as a result of mental illness, danger themselves or others? So, because the person treatment definition depends upon mental illness, That means there are other, because there are other reasons that a person might not be competent to stand trial. It's not just mental illness. It could be drug addiction. It could be traumatic brain injury. It could be a number of other things that could cause a person to be unable to understand the nature of the criminal proceedings. That is what is being described as a gap in the current system, because that person could be incompetent. But if it's not based on a mental illness, then there isn't necessarily a basis to have that person committed to Department of Mental Health custody. So as you will see, when you look in more detail at the Forensic Facility Bill, that allows commitment to the custody of Department of Corrections for any reason that they were found incompetent to stand trial. Or I shouldn't say any reason, any other, it's called a qualifying condition, but any other mental health condition that might have caused that.

[Speaker 0]: So it still would be a mental health condition or not?

[Eric Fitzpatrick (Office of Legislative Counsel)]: You're kind of getting

[Mary A. Morrissey (Member)]: into the clinical, which is

[Speaker 0]: a lot outside of me.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I see what the terminology is, just so I don't get it totally wrong.

[Speaker 0]: This is not your point. Do you want to weigh in?

[Claire Neal (Senior Policy Advisor, DMH)]: So it wouldn't necessarily be an alcohol condition as defined by a deemed nature within our jurisdiction to talk about mental health with the brain generally, then I guess it could qualify, but not how we speak about mental health or mental illness in

[Eric Fitzpatrick (Office of Legislative Counsel)]: terms

[Claire Neal (Senior Policy Advisor, DMH)]: of our jurisdiction. In case you've brought it on that, as Eric said, can include CBI, dementia, substance use, and we do see regularly reasons other than mental illness for people to be found incompetent.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Why not? Well, just to read the language at least, because it's just, why not? That's gonna be familiar when you would go do the walkthrough next week, right? So qualifying condition is what is the term of art that's being defined. And it's defined as any condition, whether mental, congenital, or traumatic, however acquired or developed, or any other circumstance that resulted in the person being determined incompetent to stand trial or not guilty by resentment saying. So not just a mental illness. And the idea is, as I said, to provide a place where a person can be detained, who's been found incompetent to stand trial for a reason other than a month of months.

[Speaker 0]: Right now, where would the person be detained? Would they be still detained in an incarcerated setting because they're being charged with a criminal act? Or would they be released back into the community? My understanding Or would they be at the hospital, state hospital?

[Eric Fitzpatrick (Office of Legislative Counsel)]: That could be. I have heard that some of them still remain in DOC custody. There are still some of those folks who are in DOC who, because of the way the system is now, aren't subject to DMH custody. But nevertheless, I've still been found incompetent. They can't be tried, right? Because they're incompetent.

[Speaker 0]: That's what So you've got a person that maybe didn't kill someone, but seriously harmed someone, and the person has Alzheimer's. Is that person gonna be housed in a correctional facility? 70 year old person. It's possible. Somebody with a traumatic brain injury as a result of a car accident. It may have happened a long time ago and acted out a real criminal. This incompetent because of the TBI.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think, I wanna double check this, but there's also a group of folks who can conceivably be placed into Dale cusp. And TBI may be one of those.

[Rep. Amy (unidentified)]: Alzheimer's?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Oh, no. I thought you said TBI.

[Speaker 0]: Well, I did say TB, right from Alzheimer's?

[Eric Fitzpatrick (Office of Legislative Counsel)]: No. I don't think so. Just to think so.

[Rep. Amy (unidentified)]: What was the facility in

[Eric Fitzpatrick (Office of Legislative Counsel)]: the Dale, the department. I think it's

[Speaker 0]: Maybe it's the aging

[Claire Neal (Senior Policy Advisor, DMH)]: and independent. It's another department. I'm choosing.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think it's them of custody of jail. That's correct. Yeah, based on that.

[Speaker 0]: I

[Rep. Mark (unidentified)]: don't know, I'm pregnant. Everything that we're talking about is the intersection of modern medicine. Forgive me if I'm out of my lane again. But there are two questions. One is I guess I should do them separately. We've been talking about it, but is there an accepted legal or even statutory definition of mental illness?

[Speaker 0]: Depends what world you're dealing with. If you're dealing with in corrections, there specific is definition of seriously functionally impaired.

[Eric Fitzpatrick (Office of Legislative Counsel)]: And

[Speaker 0]: then at the community, there's a different definition.

[Rep. Mark (unidentified)]: I guess I could park that one. And then the other one is about the facility itself. For a forensic facility, is it defined as a place whose job is to make someone competent? Or is its definition more expansive?

[Eric Fitzpatrick (Office of Legislative Counsel)]: It is, Mark. Actually, yes to both. Oh, yeah. The function is different depending on whether it's a person who's been committed there because of incompetency to stand trial or a person who's been committed there because of not guilty by reasonable insanity. With respect to the first group who has been sent there because they've been found incompetent, then yes, their function is at least in large part to provide competency restoration services throughout the person's commitment there. But a person who's spent time not guilty of original insanity, that person isn't gonna be restored to competency. They're never found incompetent, and they cannot change the fact that they were found not guilty of the conduct at the time that it happened. So there's not a restoration piece that's involved in that person's treatment. That group of people, that group is treated differently. So I guess it depends on the group you're

[Rep. Mark (unidentified)]: talking about,

[Eric Fitzpatrick (Office of Legislative Counsel)]: right? So

[Speaker 0]: right now, for a person who is NGRI, not guilty, recent insanity, what then happens to that person right now?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Same thing, same hearing I just described. Because there's been finding of NGRI, then they immediately move to the hearing. Same thing as the same thing with the incompetency. Soon as that happens, go to the hearing in the criminal court. And the hearing is that same question. Are they a danger to themselves or others as a result of the mental illness? Again, person in need of treatment is what the way to term it, that's what it means. And if the court finds that, yes, the person dangerous themselves or others by kind of mental illness, then that person also gets committed to DMH custody, can be in the hospital.

[Speaker 0]: For a long, long time. Yes. Because there was a situation back in the eighties of shooting in a that way, playing red light.

[Mary A. Morrissey (Member)]: Another story.

[Speaker 0]: Yeah. And I believe the person was deemed and and and GRI.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Right.

[Speaker 0]: And she was at our state hospital. Years. I don't know if she's still under DMH. So she was at the state hospital. This happened back in the eighties. Wasn't the

[Mary A. Morrissey (Member)]: eighties, early nineties? It was early late it might have been '89.

[Speaker 0]: Yeah. As far as I know, she's still under DH. She was at the state hospital. I know when we lost the state hospital during Irene, she had to be placed somewhere. And then I know when we finally built the secure residential, I heard she was placed there for a while. Don't know after that where, at least she stabilized so that she could be in a least restrictive environment for that. But that that's what was out there in terms of information. It's all private information too.

[Eric Fitzpatrick (Office of Legislative Counsel)]: But

[Speaker 0]: that has happened. There are folks who are not guilty. It's something insane at the time of the crime. It's a very high standard. It's very few that are successful in using their defense.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think as it happened, it came up this morning in Senate Judiciary, not with respect to this bill, it was interesting, some very similar concepts are being discussed. And I can't remember, maybe this committee remembers, but they're also in connection with the six zero six, excuse me, firearms bill that came out of house judiciary and house court. Last week, maybe? Yes. Involved some of these same concepts, because there was a prohibited language in there based on someone's mental health history. And involved the exact same ideas of competency to stand trial, not guilty by reason I'm saying it. Anyway, so that bill happened to have been discussed in the Senate Judiciary this morning, and Defender General Valerio mentioned what you were just saying, Chair Evans, which is that he surveyed his defense attorneys. Very, very rare, it's that NGRI, far more common is the competency to stay in tribal machines. But you'll see that in the bill, the possibility that someone who's found NGR will be detained at the forensic facility for a long period of time is still there. It's still possible, because there has to be a determination. You'll see that the forensic facility has what's called a clinical services director. You'll see that in the bill. And that clinical services director determines that the person's release would still cause a substantial threat of harm to somebody, then they would still be detained. So it's still possible that the person would be there for a period of time. But if not, then they can be released on conditions.

[Speaker 0]: Who would set those conditions? They're in a correctional facility. So thereby, do they have, are they under dual custody with DOC and DMH? No. Just DMH? Yes.

[Eric Fitzpatrick (Office of Legislative Counsel)]: No, just DOC.

[Speaker 0]: Just DOC. I just love it. So how would a DOC increase their budget?

[Claire Neal (Senior Policy Advisor, DMH)]: That's what's gonna happen.

[Speaker 0]: Yeah. But also so they did Oh, yeah. Because they gotta hire staff. But but also but also

[Mary A. Morrissey (Member)]: do they have the qualified staff to determine who is mentally confident or not. And, again, I'm not trying to

[Speaker 0]: assign any whatever. Disabilities. You're not gonna mix populations. You know? Maybe you may not be able to mix populations either, or you might. It's fixed.

[Eric Fitzpatrick (Office of Legislative Counsel)]: What they have now.

[Speaker 0]: This is what we're gonna have to deal with because there's if you read the bill, there's gonna have to be if this goes through, there's gonna have to be some physical changes to one of these facilities. And that's not being calculated in the BGX to do. And you're gonna have a different qualifications for staff. And is that staff gonna be part of WellPath?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think WellPath testified down in Senate Judiciary that this is the kind of thing that they do in some other states, and they would be prepared to do

[Speaker 0]: it under the system. There's your increase in WellPath contract. And then who does WellPath answer to if they want to release someone, saying, you know, they'd be okay. There's some screws.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Claire. They have to talk to Claire.

[Speaker 0]: No, Claire. No. Claire is not involved with WellPage. Actually, we don't do that. They're involved with DOC.

[Rep. Mark (unidentified)]: Right.

[Speaker 0]: So this really shifts it from the mental health world to the correct.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes, I think that's part of the intent. And it is true, there's language in there that requires DOC to do all this sort of in consultation with DMH. I found somebody else even. Maybe it's just DMH. But in any event, fine art, it's DOC that's the managing. But in any event, yes, the lead role is corrections.

[Speaker 0]: So how would this tie in? If they're gonna be in a correctional facility and under the custody of corrections, How does this tie in with our definitions of SFI? SFI, seriously functional. How does that play into that and what DOC can do in terms of segregation or classification of that person? How does that play in with current statute? We have an SFI statute. Right. Right? I mean, we spent a lot of time in here for that. We also have statute that pertains around services for folks with mental health issues that DOC and DMH need to work together here. So how does this play into all of that? I don't know if anyone in judiciary over in the Senate looked at any of that.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I'm not aware of that coming up. But interesting question. And would DOC view this population as still subject to those

[Speaker 0]: standards? And procedures and directives within their department policies. Mean, that's where it overlays. There's a lot of complexity to this. Not just housing someone with mental health issues and maybe deemed incompetent that's not housed in our mental health system, but it's housed now in the correctional system. And I'm assuming this is just for folks who have been charged with a criminal activity.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes, exactly. That whole civil group that we talked about at the beginning does not go to the forensic facility. Only people that are coming from the criminal courts.

[Rep. Mark (unidentified)]: Same caveat about law and medicine. If we're talking about someone who has come through the court, some sort of serious crime, is the placement of this person at medical facility I'm not

[Eric Fitzpatrick (Office of Legislative Counsel)]: sure which of you was this

[Rep. Mark (unidentified)]: question for. Is it based solely on their medical needs, or is there a distinction about where this person will be placed based on whether we're looking at them being deemed incompetent or deemed not guilty by reason of insanity? Does that affect where they go into the

[Eric Fitzpatrick (Office of Legislative Counsel)]: current setup? You mean under the current setup,

[Rep. Mark (unidentified)]: not the bill? Correct. What's happening right now, Vermont?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I would say that right now that's gonna be a question for the department, because from my perspective, as I mentioned, the initial legal question is once the person has been determined NGRI or incompetent to stand trial, then the court has that hearing to determine whether or not they're a danger to themselves or others. If the answer is yes, then they go to DMH, then the determination is made whether they should be hospitalized or ONH or whatever, think that falls into DMH's expertise at that time. And before the person has been deemed one or the other of these things, where are

[Rep. Mark (unidentified)]: they being housed?

[Speaker 0]: Currently.

[Rep. Mark (unidentified)]: Currently, before they've been deemed. Before they're incompetent, before they've been deemed.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Oh, that could all depend on whether or not Was it a serious offense? Might they be being held without bail? That's entirely possible. So they could be in a corrections facility already. Was it a very minor offense and that they weren't being held? It could be that they were in the community, some very minor property offense, for example, something like that. That would really turn on the nature of the criminal conduct they were charged with or they were, status wise, up until the point that So until one of those judgments has been made,

[Rep. Mark (unidentified)]: I guess the question of the medical collection in a sense doesn't enter into it. They're housed at home

[Eric Fitzpatrick (Office of Legislative Counsel)]: or in society or whatever or in a

[Rep. Mark (unidentified)]: correctional facility based on the

[Eric Fitzpatrick (Office of Legislative Counsel)]: severity of what they're doing as opposed to anything to do with their mental health. Well, it is also possible if there was indications that the person was dangerous earlier on in the timeline. Think it probably would be possible, although I suppose if that happens, they would still be probably in DOC custody one way or another. Absent some finding by the court that they were a danger, it's still, I think, subject to DOC. But even those who are held without bail have to have a trial. I mean, I know there's a backlog within sixty days, so there's a sixty day limit on those hurdles. Right. It's not happening, right? I know, but you're right, it does exist.

[Speaker 0]: We've got a lot of work ahead of us on this.

[Rep. Mark (unidentified)]: It's a

[Eric Fitzpatrick (Office of Legislative Counsel)]: lengthy, complicated bill, true.

[Speaker 0]: This is the first exposure we've had, and I'm sure a lot of the questions are gonna come up as we start thinking about this a little more, start understanding it. It's gonna be a heavy lift, and it's gonna be an emotional lift. There's gonna be a lot of divergent thinking in this body, not just this room, not just judiciary room or human services. It's going to be a big issue for the house in general. I think it's gonna play out a little different here than it did North America. Maybe not. I don't know.

[Eric Fitzpatrick (Office of Legislative Counsel)]: That's weird. You're right.

[Rep. Amy (unidentified)]: Eric, we can make a part

[Eric Fitzpatrick (Office of Legislative Counsel)]: we leave up to you guys.

[Speaker 0]: Yeah. I

[Rep. Mark (unidentified)]: think you should come to us on

[Eric Fitzpatrick (Office of Legislative Counsel)]: the seventeenth with a finished product. We'll try, though. We'll do our best.

[Speaker 0]: So Bill has passed the Senate, correct?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes.

[Speaker 0]: So it will be over here probably Tuesday or Wednesday last week. So at least Martin and I want to have a conversation. Where does the bill physically go first? Doesn't mean that wherever it goes first, that's gonna be the committee and only the committee that works on it. Right. It goes to the judiciary first. We'll be working on the pieces that deal with questions. We can help you out of corrections in there. If you haven't read the calendar, senate calendar, that's right there. It's been posted on our web page. What what you sent over, what was posted for s one ninety three, is that how it passed the senate or is that just the center amendment? Looks like just center line.

[Eric Fitzpatrick (Office of Legislative Counsel)]: That was just the lines piece. It was not haven't actually seen, because there's a process that our office goes to integrate everything. And I know that I've just finished the miscellaneous procedure to this year. But I guess now that I think of it no. That's probably why. Right? Because it just passed yesterday. So because I haven't seen this one. So that means that the final integrated version isn't on our website. It isn't here yet. But hopefully, today, Thursday? Maybe tomorrow?

[Speaker 0]: I think next Tuesday, by the time we see. Not

[Rep. Amy (unidentified)]: making light of the situation, how would one petition the court? Do you retain a lawyer and have them help you put the petition in? Or do you go online and start filling out forms? How does that work?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Either one. Yeah, it's not required. You can proceed what's called pro se, means without an attorney, you could do that. I would contact, let's just say, hypothetically, we're talking about the family division for one of these kind of situations that you were talking about. I would call the court clerk of the family division, whatever county he resided in, and I would say, here's what I'm thinking about. How would I find the petition to fill out? And I'm 99% sure that court clerk would say, I'll send you the link, or here's where it is on our website. You can fill it out. Obviously, you could retain an attorney. Not that you couldn't, but I don't think you can, sorry, have to. Yeah, it's

[Rep. Amy (unidentified)]: my fault. Any experience as to how quickly those petitions are reviewed?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Again, think if it's a, I don't have personal knowledge. Generally speaking, when it's a situation like this, when it's an emergency healthcare situation, courts try to move quickly and move those things to the front of the line. Think they do their best, knowing that everybody there is a long line. But they do their best with that kind of stuff.

[Speaker 0]: Anything else? Questions? So we'll have our work cut out on this. We'll have to bring in a lot of people to testify.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes, we want to hear from plenty of people.

[Speaker 0]: We do have the background in here at DOC, and we do have the background of BGS.

[Claire Neal (Senior Policy Advisor, DMH)]: And

[Speaker 0]: that's gonna be a lot of the load on this particular bill to logistics. And I'd be also really curious what we have in statute right now, DOC, they have issues and supply. So that's gonna play in.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah, that'd be an interesting question for them. How do you see

[Speaker 0]: that? Senator Sears was here, he would've brought

[Eric Fitzpatrick (Office of Legislative Counsel)]: me back. Yeah, he probably would've, right?

[Speaker 0]: Because we were in the throes of putting all that together. So we'll have you back here scheduled Katie once the bill gets done and walk through now, regardless which committee it starts in, we'll still be working on.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Sounds good. Well, any questions, let me know. I'm sure we'll see you back on the bill again soon.

[Rep. Mark (unidentified)]: Nobody's coughing. Thank

[Speaker 0]: you. Karen?

[Claire Neal (Senior Policy Advisor, DMH)]: It's okay. Karen is the best person to speak on this test.

[Speaker 0]: He's not

[Claire Neal (Senior Policy Advisor, DMH)]: a pleading today, but hear anything.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Oh, really? Wow, she answered the When I said I spoke to Karen, did mean Karen. Sorry, I looked at you, so you probably thought I would, but she answered the phone at noon, so maybe she was right in the airport

[Rep. Amy (unidentified)]: or something.