Vermont Legislature SmartTranscripts:

[Martin LaLonde (Chair)]: Welcome to the House Judiciary this Tuesday afternoon, January twentieth. We're gonna start in on a new bill, H-six 27. A little ahead of the schedule as far as when I wanted to look at this session, but because we have some folks from out of town who are gonna be here tomorrow, are going to be in a public hearing tomorrow afternoon regarding survivors in the mental health system and criminal justice system tomorrow afternoon at 02:00. Since we were gonna have some of these folks here in the state house anyway, I figured that we would get started. But to be prepared for that testimony tomorrow, I wanted to have a walk through of the bill and a couple additional witnesses to start talking about it. But my anticipation is not that this is something we're gonna be really passing out soon because I think it really is related to some other work that's being done regarding forensic facility and competency restoration and the like. But nevertheless, I think this will kind of get us started on this issue, which will be a big issue through the rest of the So with that, we'll start with talking with Doctor. Eric.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Thank you for being here, Eric. Yes, thank you.

[Angela Arsenault (Member)]: Good afternoon, everybody. Afternoon.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Eric Fitzpatrick with the office of legislative council here, as the chair said, to do the first walk through of house bill number six twenty seven relating to crime victims' rights in forensic cases. As you may have noted from the statement of purpose, the sort of big picture here is that it's expanding the rights of crime victims in forensic proceedings involving a criminal defendant's sanity or competency to stand trial. So that's the kind of big picture universe of what we're talking about here today, the the rights of victims in proceedings related to insanity as a defense and competency to stand trial. Few seconds of refreshing everyone's recollection. Remember, these are two different things, insanity defense and competency to stand trial. They're related in the sense that they both deal with criminal defendants' mental health, mental capacity, but they're different. So in that sense, they're connected, they're different, and they deal with the defendant's mental health status at different times during the criminal proceeding. So insanity as a defense that deals with the defendant's mental health status at the time the criminal offense is committed, the alleged criminal offense, and their competency to stand trial, as you would expect, is deals with their mental health status at the time of the trial. So it's important to keep that in mind because they're very different consequences to those two things. For a criminal defendant is found not guilty by reason of insanity, which means that, you know, at the time of the alleged offense, they were either unable to to understand that their conduct was criminal, or they were unable to conform their conduct to the requirements of the law. So either you didn't understand it was criminal, or even if you did, you couldn't act in a legally required way. If that happens, since that deals with the defendant's mental their mental status at the time of the their of the offense, and they are successful in asserting that defense that they're not guilty by reason of insanity, It's a complete defense. Cannot be prosecuted again for that offense because you can't, in the future, ever go back in time and change whatever the mental health status was at time of the offense that was set at the moment. On the contrary, competency to stand trial has to do with the defendant status at the time of the trial. They can either they're incompetent to stand trial if they can't understand the nature of the criminal proceedings again them against them, the nature of the criminal charges, or they can't participate meaningfully in their own defense. But that is different than if you think about it. Competency can be restored over time. Person could not be competent at one time, but their ability to understand the nature of the criminal charges against them or to participate in the proceeding with treatment or with time could improve. So competency can be regained, can be restored, whereas, say, need complete defense and criminal charges can never be brought against. So the court to keep those things in mind is particularly the chair said, we're gonna be dealing with this this issue, I think, quite a bit during the session. So those sorts of proceedings, when either a defendant, say, can raise a motion that they were insane at the time of the offense or with respect to competency, the defense, the prosecution, the court, by their own motion, can all raise the defendant's competency during the course of a proceeding. When this issue comes into play, the court has to have a hearing. So the first hearing would be to determine competency or sanity if that were coming up in the proceedings. And if the court finds that either one of those things is true, either the either the defendant was not competent to stand trial or insanity at the time of the events, then the court has to have a second. And the second hearing is what happens to the defendant next? They are either and that's gonna turn on whether the defendant is the legal term is a person in need of care or custody or treatment. Sorry. Person in need of treatment. But the sort of import of that means that they're a danger to themselves or others. That's the

[Ian Goodnow (Member)]: big picture. So if the

[Eric Fitzpatrick (Office of Legislative Counsel)]: person's a danger to themselves or others, what happens? They get committed to the custody Department of Mental Health or the Department of Aging independently, depending on the nature of the of the mental condition that the person has. So backtrack to or really not backtrack, but segue into h six twenty seven, this bill deals with the rights of victims in these proceedings. And in particular, we're talking about that first hearing of whether or not the defendant either is competent or not competent or insane at the time of the offense. And then and even more so that second if the defendant is found to be one of those things, are they put in the custody of one of the state departments? And and you may recall a few years back, you put into statute some victim notification rights about these hearings. And in particular, there's one that you may recall that it has to do with after the person is in custody. You know? Very frequently, there there will be a stage of proceedings where the victim may be coming out I'm sorry. The defendant will be coming out of custody. Right? Maybe because they're no longer found to be a danger to themselves or others. Or it may be that because these custody orders have time limits attached to them. Maybe that the department that has custody of the person has made a determination internally that, no. We're we're not gonna try and renew this order. So they'll let the time period of the order expire. In either one of those situations, this criminal defendant might come back into the community or might come back might come back into a step down level of care. So what the legislature did a few years ago was put in some victim notification procedures in those situations. So when the defendant is gonna be coming back to the community or transitioning to a different level of care, the victim has to get notice and has an opportunity to submit a victim impact statement. So that's kind of what you have now. The proposal that you have here expands some of those victims' rights to get notice of and participate in these proceedings. That's one. Creates kind of an an opt in. Actually, I think it's an opt out. I think it's yeah. It's an opt out process for victims so that they would get notice of some of these hearings unless they choose to opt out. Also, sort of increases the amount of time that they have in order to have notice of when a hearing's gonna happen or when someone's gonna get discharged. And it also allows the victim to testify in person in certain situations as in addition to submitting just a written victim impact statement. So those are kind of your three big picture sort of enhancement of victims' procedural rights that you'll see when look at the language.

[Martin LaLonde (Chair)]: Couple other things that the bill does, you'll see at

[Eric Fitzpatrick (Office of Legislative Counsel)]: the end, it creates a new position in the Department of Mental Health called a victim liaison for forensic cases, and it creates this position to assist victims understanding what their rights are in these types of proceedings and also to coordinate prosecutors as far as making sure victims find out what's going on. And also requires a report from the Department of Mental Health on improving victims' rights and experiences in these kinds of cases. So you've got increase of these procedural rights, creates a new position in DMH, reporting requirement from DMH as well. Like, I feel like every time I come up with three big things, and it's not 10. You know? It's me. I'm in a row. Of three. So just make it. It's what it is. Right? Power trio.

[Martin LaLonde (Chair)]: So

[Eric Fitzpatrick (Office of Legislative Counsel)]: big picture. You can pause there for a moment, or can sort of look at some of the specifics, whatever the committee prefers.

[Martin LaLonde (Chair)]: Any questions initially before we get into specific notes here? Go ahead.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Alright. So section one then refers to the first the first hearing process that I mentioned, the first hearing, rather, process. And this is the one where the court is having a hearing to determine the

[Martin LaLonde (Chair)]: defendant's mental

[Eric Fitzpatrick (Office of Legislative Counsel)]: health status at the time of the offense. Could be in terms of competency. Could be in terms of insanity as a defense. But you see there, currently, when there's this process this hearing process set up, The person who's the subject of the proceedings, all I get notice of the time and place of the hearing at some line the scene of existing law. This creates the opt out process that I was just mentioning. So this adds to that. So the state's attorney gets notice already, the prosecuting officer. This says adds to that, the notice shall be provided by the state's attorney. So when they get notice, right, the SA or the AG gets notice, they have to provide that notice, now it goes down from page one over to page two, to any victim of the offense or which the person has been charged who has not opted out of receiving the notes. So in other words, a victim doesn't automatically always get notice, but they have the option to choose whether to get it through this opt out process, which you'll see a few lines down is then required to be created. Starts in line six. Court shall maintain sort of these two sort of two entities that are involved in this process are the court and the state's attorney's office. So or or the prosecuting officer. But starting in subsection b, the court has to maintain a system for a person to file notice that the person is a victim in a proceeding under this chapter. So the court sets sets up a system under

[Martin LaLonde (Chair)]: which

[Eric Fitzpatrick (Office of Legislative Counsel)]: a person who was a victim can file this notice, can let the court know, hey. I'm opting in or or I'm choosing to opt out rather. Sorry. Then in addition to that, in subsection c, the state's attorney or whoever's prosecuting the case has to ensure that all victims of record, in other words, people who notified the court in the previous subsection that they are a victim, that they are notified of their rights under this chapter and made aware of the option to receive notifications from the court. So you've got this sort of interrelationship between the SA and the court about setting up this notification system. Might seem a little familiar. There's a there's kind of an analogous system for the earned time with the Department of Corrections. Remember, there's an opt I can't if that's opt in or opt opt out. But I think DOC is the one that manages that. So it's a similar conceptual idea. And it just uses the same definition of victim that you have in the victim statute generally, which is a person who sustains physical, emotional, or financial injury or death as a direct result of the commission or attempted commission for crime or an active delinquency. Also includes family members and a couple of other listed people. So it just uses the it just cross references the existing victim definition that you have elsewhere in in title 13. And so Yeah.

[Martin LaLonde (Chair)]: Sorry. Just having a little trouble understanding the connection between the earned time and what you're talking about.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Not sure. No real connection legally. I was just saying that the concept might be familiar to the committee because you've looked at it before in that earned time context. But there is this, an opt in provision over there as well.

[Martin LaLonde (Chair)]: Alright. Okay. Yep.

[Barbara Rachelson (Member)]: Questions or? Yeah, if there's any particular issue.

[Angela Arsenault (Member)]: Just a, well, I don't know if it's a structural question. So I'm looking, Eric, on line one, that same page, for which the person has been charged who has not opted out of receiving the notice.

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

[Angela Arsenault (Member)]: And then line 10, it sounds like they have to be made aware of the option the option to receive notifications. So it's not sure. One is you've opted out, so I would assume that it's an opt in by default. But then on one ten, it sounds like there has to be affirmative action to receive notifications.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah, and maybe that language needs to be clarified. I think the intent is that it's an opt out system. So in other words, you automatically get the notice unless you opt out.

[Angela Arsenault (Member)]: Yeah. I think that's like

[Eric Fitzpatrick (Office of Legislative Counsel)]: Maybe too many double negative

[Ian Goodnow (Member)]: Options regarding notification.

[Angela Arsenault (Member)]: Or just the or made aware of the option to not receive notifications from the court. You know, something like

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

[Ian Goodnow (Member)]: Sorry to slow us down. Just another question on the first section. So in practice, probably, and I'm sure about the AG's office, but for the state's attorney's office, going to be the victim's advocate that is providing the notice. And the language in here is explicitly the state's attorney or prosecuting officer. I don't know about when we've done this in other statutes with victims' rights in just criminal proceedings, if it's also just state's attorney or prosecuting officer and that that sort of translates to the victim's advocate, or are we kind of intentionally cutting them out?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I don't know the the latter question because some of this language came from the Center for Primary Conservatives that whether it's an intention, I would follow-up with them. Yep. But if you I I don't think there's any pattern, in other words, that we can model on that. So whatever for purposes of clarity, maybe you'd

[Martin LaLonde (Chair)]: wanna include victim's advocate if

[Eric Fitzpatrick (Office of Legislative Counsel)]: you wanted them to also have the ability to provide the notice. But it'd be an interesting question. Or could it

[Ian Goodnow (Member)]: be broader to just the attorney's office and the attorney general's office so that it could be provided notice by a number of individuals? Mhmm. Or maybe we want it to be more strict. It's too

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. Right. That part is up to you. Yeah. Okay. And

[Ian Goodnow (Member)]: that would go also for the next section, for the other section too, for a c as well.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. And just see what you hope. It's gonna be all safe. About yes. That's the language in many places.

[Kenneth Goslant (Clerk)]: Okay.

[Eric Fitzpatrick (Office of Legislative Counsel)]: But, yes, the same concept for sure. Yeah.

[Martin LaLonde (Chair)]: Go ahead. Thanks.

[Eric Fitzpatrick (Office of Legislative Counsel)]: So now we're moving on to another here. Now we're not talking about a different stage of the proceedings now. Now we're talking about you'll see if you look at the existing law, page two, line 16. Right? If the court finds that the person is a person in need of treatment, in other words, anytime you see that phrase, what that means in a nutshell, danger to self or others. That's what that means. So if the court finds that the person is a person need to treat remember, because they have to have if they've been found either incompetent or not saying that the time contains, they have to have that next hearing to see if they're dangerous, because that will decide whether or not they're committed to state custody. So if the court does find out that the person is a person in need of treatment, the court shall issue an order of equipment directed to the Department of Mental and then starts at that initial ninety day period. See that the second sentence there, because it's gonna be important to continue on, says that in any case involving personal injury or threat of personal injury, committee court may issue an order requiring a next page court hearing before a person committed under this section may be discharged to custody. So now we're moving on to this potential discharge. Alright. So let's say a person's been in custody because they've been found to be a danger to themselves or others, but they could be discharged in one of a couple of different ways. And one way is that the court can hold a hearing, and the defendant can motion for this or the department can motion for it. They can hold a hearing to determine whether the person is in need of continued treatment. Right? They are whether they're still a danger to themselves or others, that's an option. The court can have a hearing of that. And there's something else that that's been referred to, and I'm sure your witnesses will be able to talk about this in more detail, sometimes referred to as administrative discharge. But, really, for example, the department let's say the the last quarter that was in effect was one year, say, and they're not required to file a motion for continued treatment. They may reach the conclusion that, well, the person will be ready for either a lower level of treatment, discharge into the community, wherever it may be. Department could let that order expire, the one year expired. And that then and at that time, the order wouldn't be in effect anymore. Person would have the ability to possibly go into the community or possibly not be subject to apartment custody any

[Barbara Rachelson (Member)]: longer.

[Eric Fitzpatrick (Office of Legislative Counsel)]: So if you think about those two avenues, right, what this proposal we're about to look at says that whichever way that happens, the victim has to get notice of the proposed change in status. That's the language that you'll see. For example, on line seven and eight, page three, this is this is this is the judicial route, the judicial avenue, whether it is gonna be a hearing regarding the discharge. Right now, you'll see who has to get notice of this hearing. Well, there's actually two things to mention here. But who gets notice right now? That's sort of line six and seven. Commissioner shall give notice to the committee court, to the state's attorney of the county where the prosecution originated, and it adds as to the people who get notice of this discharge, proposed discharge, any victim of the offense for which a person who has been charged has not opted out of receiving notice. So, again, brings up our are we using the opted out language correct? We'll make sure we know that one as well. And the point that represent Goodnow was mentioning as well about who it is that's providing the notice. But, also, you'll see line five, the way the statute reads now, this notice has to be provided at least 10 prior to the proposed discharge, it so provides to add some more time to that. So they get thirty days notice rather than ten. It's the proposal.

[Angela Arsenault (Member)]: What do have, Karen?

[Karen Dolan (Member)]: I think I know the answer to it, but it's using the same system that will have been created on page two in line b through d. Exactly. Do you need me I'm just trying to visualize. I can't picture how it stands. Does it need to be referenced again, or it's clear that that's who the victims are, that we would be I think it I

[Eric Fitzpatrick (Office of Legislative Counsel)]: think it's okay. It's written because back then, you see, it says shall ensure that victims of record on lines nine and ten of page two are notified of their rights under this chap to all their rights that in all these statutory sections, part of all be part of

[Ian Goodnow (Member)]: that state. One really quick, just as we're talking about the process, I think I know the answer to this, but decision to discharge from the custody of the Department of Mental Health or the and the restoration of competency, they are not the same. So someone could be discharged, but their competency may not be restored yet.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Correct. Because they might be discharged because they are dangerous, but that doesn't necessarily that they have therefore can participate in their own legal defense or understand the nature of legal charges. Right? Yeah. Yeah. I agree. So as we just mentioned, so we're now sort of in the avenue of this court hearing. We said that, okay, the victim gets this notice from the department as well. If you look down at the bottom of page three over on the page four, this is the same language that we saw. State's attorney also provide notice to, over on the page four, any victim who has not opted out of receiving notice. And this is notice of the hearing, by the way. So it's slightly different. The first notice in the over on the upper page three was notice of the proposed discharge. This is notice of the hearing. So and, again, you know, where am I now? Alright. So department provides notice of the discharge. State's attorney provides a notice to the victim before they hear it. So that was all judicial discharge, so to speak. Now starting in subdivision two, you'll see existing language line six. This shall apply when a person is committed to DMH. And this is the other situation where there might just be a discharge that doesn't actually necessarily entail court hearing. It might be an expiration of a commitment order that's reached the end of its time limit, and department the has decided not to renew it. That person would also be discharged, but in a different sort of way. This adds the same victim notification pieces to that. You'll see it down in lines fifteen and sixteen. So when a person's committed under this section, the commissioner again provides notice to the to the SA or the AG and to any victim of the offense who has not opted out. So in addition, similar to the judicial avenue in this avenue as well, the victim gets notice of the proposed discharge from the department. Again, you'll see line 17, the increase from ten to thirty days again. So this notice, again, increasing the amount of time that the victim has about notice of the proposed discharge from ten days before the discharge to thirty days before it. That's line 17. Now over on the top of page five, this also because remember, it could be that they're proposing to affirmatively discharge. It could be that they're just letting an order expire. So this is also increasing that thirty to 10 to 30. If they're gonna do it that way, we're just gonna let the commitment order expire, then we'll provide notice of that thirty days instead of ten days before it happens. That's the idea there. And then lastly, and this is a question that that I only as I was reviewing it, I'm not quite sure the answer. You may wanna talk to your witnesses about this, and that's the whether you want this to apply to any other part of the statute. But what what this does is the point that I mentioned earlier on in my intro about expanding the victims' rights beyond not just receiving a victim impact statement, but having the right to testify and be heard at at one of these court hearings where the discharge of the defendant is being considered. So you'll see that right now, the current language is starts in line, victim receiving the notice. We've talked about the essay has to give the victim notice about these hearings, has a right. And if you sort of imagine that underlying language not being right now, has the right to submit a victim impact statement to the family members. See that? So that's what the right is now. They can submit this written statement. The proposal is to add to be heard by the court or to submit a victim impact statement. So you could do it by writing if you want, but you could also go in and ask to be heard if you'd rather. And then adds the final sentence in that subdivision. Victim may express views concerning the offense, preference for the victim's placement in care, and the court shall consider the victim's testimony in his decision. So the question that occurred to me was, the way it's written now, this applies in the context of the of the Subdivision 2 only. Right. Which is Discharge? I'm sorry. Subdivision Subdivision B 1 over on Line 12. So it sort of comes under that. So it's under the sort of administrative discharge rather than the one that goes through the court process. I'm not sure if the intent originally was to have it be in both or not. So it's just a question that and maybe it's exactly right the way it is. May because you couldn't think of a reason why. You know, maybe they only wanted to be in the in in that one because in the in the judicial process, they're gonna be looking again at the question of is the person a danger a danger to themselves or others? Maybe that's more of a legal question, and it's not really the sort of proceeding where the intent is to have defendant testify. So it may be that it makes some sense to have it only be in the administrative setting as opposed to the judicial one, but I'd wanna follow-up with the proponents of the legislation should see that the thought was like that.

[Martin LaLonde (Chair)]: So

[Barbara Rachelson (Member)]: if the

[Martin LaLonde (Chair)]: if the

[Barbara Rachelson (Member)]: person person was was found competent to stand trial, or if it wasn't an issue and the person stood trial, the victim, as part of the court process, gets to make their impact statement. And so I'm wondering if the idea was to make sure, like watch the victim lose out on and have that sort of cathartic, really important opportunity if somebody is found incompetent. Yet, just like you were saying, it doesn't seem like the victim could talk about all the harm that was done, but not necessarily weigh in on, We don't think this person should ever be found. It's not their job to weigh in on the competence. And so I wonder if the importance is just having a chance for everyone to hear the impact, and in actuals, it may not matter. It may make sense to have it in both, but it's really limited to that and not weighing in on anything.

[Martin LaLonde (Chair)]: Yeah. That could be.

[Eric Fitzpatrick (Office of Legislative Counsel)]: And and that may sort of consistent with what what you're saying, representative Rachelson, the the language in lines thirteen and fourteen, the proposed language about what the victim may express views about concerning the events and preferences for the victim's placement and care. So that's different than whether or not they are endangered themselves or others. So maybe that's kind of what they're trying to get at there.

[Barbara Rachelson (Member)]: Given that we don't have a lot of options for that, I would hate to set up a victim to be like, Oh, you get to weigh in on that. You live in Bennington, you want the person to be up in Franklin County. We don't have programs in I just would hate to make false promises to a victim that thinks that their statement is going to influence something.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, as I said, I think it'd be a good question or questions to follow-up with from the proponents of the bill to find out what exact what's the intent here and make sure that the language corresponds to what they're thinking to have happened?

[Barbara Rachelson (Member)]: Right. Like, someday, if we have victim restoration programs in every county, you could picture them saying, not please not in this county. Occupancy restoration? What? Outpancy restoration. Right. Yes. Not sorry.

[Angela Arsenault (Member)]: I was like, it's just a new thing in.

[Barbara Rachelson (Member)]: I'm sorry. It's the coffee ran out. I'm in my kitchen. I'm good. Another

[Angela Arsenault (Member)]: sort of language question about line six on page five. In this section or subsection, it's when the state's attorney or attorney general And I'm just wondering for

[Eric Fitzpatrick (Office of Legislative Counsel)]: I'm sorry. I I lost you where you were. Sorry.

[Angela Arsenault (Member)]: Page five

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

[Angela Arsenault (Member)]: Line six.

[Martin LaLonde (Chair)]: Okay.

[Angela Arsenault (Member)]: It's on the state's attorney or attorney general. Mhmm. And I'm wondering if

[Karen Barber (General Counsel, VT Department of Mental Health)]: that should stay or if sorry,

[Angela Arsenault (Member)]: what was the link? The prosecutor, a state attorney, or other prosecuting officer representing the state, if we're for consistency's sake?

[Martin LaLonde (Chair)]: That's that language that Ian was mentioning earlier. If you wanted I to include

[Angela Arsenault (Member)]: mean, I don't know if it's right. I don't know if, in this context, it should include other the state's attorney's office or attorney I'm just saying the attorney general is named here, I think that's what's implied by, or another prosecuting officer representing the state. But I'm wondering why the use of, or another question. He's representative state versus attorney general in the previous, like, on page two.

[Martin LaLonde (Chair)]: Mhmm.

[Angela Arsenault (Member)]: If there was a reason for that and if we're a chicken since we're in here. Right. Just looking for consistency.

[Martin LaLonde (Chair)]: Yeah. Yeah. I think that

[Eric Fitzpatrick (Office of Legislative Counsel)]: the like you said, the implication of other prosecuting officers representing the state is generally the AG. So I agree. Be consistent one way or the other. Yeah. But I think the intent is to cover the same two.

[Angela Arsenault (Member)]: So it wouldn't, from a legal standpoint, either both work, but it's

[Martin LaLonde (Chair)]: To pick one? I think so. Yeah. Okay. Yep. So I have a question. So the provisions that start on page four, line six, the 2A provisions Yep. So that's not necessarily going to be in court? Or will that process always end up in court?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I don't think so. It could be a good question for your department witnesses. But my understanding of that has been that, for example, when when one of these commitment orders expires

[Kenneth Goslant (Clerk)]: Right.

[Eric Fitzpatrick (Office of Legislative Counsel)]: It doesn't necessarily end up in court. Which which means on page five, and it

[Martin LaLonde (Chair)]: doesn't, yeah, line 10 through 12, I mean this is current law as well, they could commit that statement to the superior court if it's not the court hearing.

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

[Martin LaLonde (Chair)]: I would just flag that as something we have to look at. Right. Yeah, and the same is in line 14 where we say the court shall consider the victim's testimony in decision if the court won't make any of the decisions.

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

[Kenneth Goslant (Clerk)]: But

[Eric Fitzpatrick (Office of Legislative Counsel)]: And I suppose if it's possible it ends up in court, the court, if any. But I see that it's a good point, that we wanna make sure that it's being presented to the right place. This last piece on page five just has to do with continuances. And, this is referring to the entirety of subsection c, so this does specifically include when these proceedings are in court. And under current law, the court has a discretionary authority of c y 19. The court may continue. So the court may continue some of the time limits in this subsection for an additional period of fifteen days upon a showing of good cause. So the proposal to add is a mandatory continuance. The court shall continue the hearing if the victim has not been provided with the notice required by the section. So if the victim doesn't get the notice there, this new statutory language is requiring, then the court has

[Martin LaLonde (Chair)]: to continue until they the proposal there.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Alright. Moving on then to page six. You'll see this is a separate section of law. This is in the victim's chapter general. So we've moved now beyond we're not just talking about forensic proceedings anymore, not just con proceeding involving the insanity defense or competency to stand trial. This is victims' information concerning release from custody generally. See that on line seven. So what the proposal here is to having to do, though, would confect the defendant's release from custody and their notification proceedings generally. But you see that in the first line, the word timely is added. So under current law, victims and affected persons have the right to request notification by the agency having custody of defendant before the defendant is released. So prior to release, you can request this. They also the answer has a right to request timely notification. So trying to move those notifications along, and it adds to the list of situations in which the victim can request this note. You see under the current law, it's things like release on bail, conditions of release, furlough, etcetera. And then it goes on line 13. It starts to add. Or when the defendant is transferred from a secure or staff secure setting to a community based setting in any case involving personal injury or threat of personal injury. So when the defendant is transferred from one type of setting to the other in one of those cases involving personal injury or threat of personal injury, then the victim has a right to request notification when it happens in a timely manner.

[Martin LaLonde (Chair)]: So Kenneth, go ahead.

[Kenneth Goslant (Clerk)]: Does timely mean the same to you as what it does me?

[Eric Fitzpatrick (Office of Legislative Counsel)]: It's a good question. I don't know. It's, but you're right. It is subject to interpretation by the court.

[Kenneth Goslant (Clerk)]: But every court, every judge is gonna have a different timely decision.

[Martin LaLonde (Chair)]: It's possible.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I don't like that. She can be specific.

[Kenneth Goslant (Clerk)]: Is there better language that we should be looking at for that?

[Eric Fitzpatrick (Office of Legislative Counsel)]: You could say So

[Kenneth Goslant (Clerk)]: am I wrong? That's a wide broad range, is it Yeah,

[Ian Goodnow (Member)]: it is.

[Martin LaLonde (Chair)]: And we can ask Judge Zonnik when we have a bid tomorrow. That's a good question for him. We've gone over this before with him when he's talked about whether it should say prompt. This is like new now. I mean, we've had the discussion whether it should be prompt or an actual time limit. It's so so yeah, I I make sure we ask Zoe about that. And just one more thing.

[Kenneth Goslant (Clerk)]: So much of this language, like in in my years in this in this committee, we've heard over and over and over. It just seems like a little bit of the same language. It's just put differently that and different, like, notifying the victims of release and all that stuff. I've heard that before in different bills. Right? So a lot of this bill that we're dealing with today is what we've dealt with over the years, and we've done nothing with those bills? No, we have. It's in different scenarios. And Jen Fulman can really go over that history as well for us. Okay. She should be.

[Martin LaLonde (Chair)]: That's fine tomorrow. Okay.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Got it. Thank you.

[Martin LaLonde (Chair)]: And she's planning on doing that.

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

[Martin LaLonde (Chair)]: Where were we? Oh, yeah.

[Eric Fitzpatrick (Office of Legislative Counsel)]: So there's another another in a timely manner, same issue that representative Goslant was identifying. Page seven, line five, again, about the time frame that the victim has to be notified when the defendant is being released. So you may wanna ask judge Zoning about that language as well. Same idea. So that brings us to I mentioned, again, the intro, you may recall that creating a new position in the Department of Mental Health, that's where we're on now, section four, page seven. It's called the victim liaison for forensic cases, and the duties of the new position are described in subsection b. First one is assist victims by providing information and guidance on DMH policies and procedures related to forensic cases. Over onto page eight, coordinate with the attorney general's office and the Department of State's Attorneys and Sheriffs regarding forensic cases. And lastly, assist victims in navigating court systems and law enforcement agencies in forensic cases. So you've got the duties of the new position outlined there. The next section you'll see is the section that's required for budgetary purposes if you're creating a new position. So the position has to be identified here as well, as well as an appropriation if you choose to do this. So you'll see one full time classified permanent victim liaison for forensic cases position is created in DMH, $150,000 appropriated general fund for the position. And then lastly, section six is the reporting requirement that I mentioned, the DMH reporting requirement regarding victims' rights in forensic cases. Basically, the requirement is to report back to you folks as well as the committees on health care and human services and the senate committees on judiciary and health and welfare on the the sort of big picture description, line 17, on improving victims' rights and experiences in forensic cases in Vermont. There's a list, as you often see, of people that the department is required to consult with for purposes of this report. Starts over on page nine. Quite a a list there of people that are frequently put on as consultants or members of committees, however you choose to do it when you guys have identified an issue that you want looked at for purposes of a report. Some specifics about the what the report has to include, page nine, recommendations to improve victim yeah. Recommendations to improve victim access to and participation in court proceedings involving forensic cases. Recommendations to improve victim access to information in forensic cases. That's number two, putting the development of a court release form, allowing persons who are not found were found not guilty by reason of insanity or incompetent to stand trial, to provide access to the victims with basic information about the person's location, reasonable notice to the person's court proceedings. And lastly, an assessment of any discrepancies between statutory requirements and current practices as they relate to victims' rights and notification of forensic cases.

[Martin LaLonde (Chair)]: That was due at the yeah.

[Eric Fitzpatrick (Office of Legislative Counsel)]: 11/01/2026 is when the report is due.

[Martin LaLonde (Chair)]: Who's guiding victims through the system now? We will have a victim liaison.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Good question. I think that the victims' advocates in the state's attorney's office play a role in that. I think the Center for Crime Victim Services has a role to play in that. Those are the two that leap to mind for me, but there might be There might be witnesses can tell you about. So if the bill gets

[Martin LaLonde (Chair)]: passed and the victim liaison isn't funded, then none of that changes, I'm going to assume.

[Eric Fitzpatrick (Office of Legislative Counsel)]: The other positions I just mentioned, you mean? Yeah, that's right. That stuff continues to exist. Yep.

[Martin LaLonde (Chair)]: And with the changes that we've made in sections one through three, that put a bigger burden on victims to get through the system?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I don't know. I think that'd be a good question for your witnesses. It's certainly That's my fear.

[Martin LaLonde (Chair)]: I mean, is that the the bill passes, but with the way the money is in the state now that the liaison's not gonna get, I don't see it happening myself, but it's Yeah, it's a good question to follow-up on. Ian, Angela Eric,

[Ian Goodnow (Member)]: I'm not sure if this is a question for you or not. On page five, line 19 through 21, says the court shall continue the hearing that the victim has not been provided with the notice required by this section. When drafting this section, did it come up at all the right to a victim impact statement in a criminal sentencing hearing and that in those hearings, it explicitly says that we can't continue hearings if the victim hasn't been given notice.

[Eric Fitzpatrick (Office of Legislative Counsel)]: In other words, that is not

[Ian Goodnow (Member)]: a reason for continuing. It's explicitly we're not allowed to. And maybe it makes sense that in this one, shouldn't be allowed to continue hearing or that a hearing shall be continued if the notice isn't provided. And in those ones, we can't continue that. But I just was curious. We've got basically essentially, a victim impact statement being provided in these two different procedure proceedings. And in one, we're saying one thing and the other, we're saying something completely different. Right.

[Eric Fitzpatrick (Office of Legislative Counsel)]: No. That didn't come up during the course of the drafting. But, another good question for your witnesses, sure, as to whether or not they should be consistent or whether there's a reason for the difference. That's what I meant.

[Martin LaLonde (Chair)]: Yeah. Angela, are you looking?

[Angela Arsenault (Member)]: Thank you. So I'm looking at page nine of lines 15 through 19. Am I reading this correctly? That it's saying that the person who's found not guilty by reason of insanity or incompetent to stand trial will be they're looking for a recommendation to come up with a way to so that that person will provide victims with access to basic information about that person?

[Eric Fitzpatrick (Office of Legislative Counsel)]: That's what I agree to. Although, I suppose it's not necessarily requirement. Seems it's allowing. Right? 16 allow.

[Angela Arsenault (Member)]: I guess I'm so a court release a court release form allowing persons isn't it allowing the court? Like, that person I'm just confused about, I guess, the structure of the the sentence maybe. Like, is saying that a court release form allows the person who's found not guilty by reason of insanity on top of a de centro is gonna be providing victims with access to basic information about the person's location, but it doesn't say anything about how the victims would access that information.

[Martin LaLonde (Chair)]: What's it, Latin American?

[Angela Arsenault (Member)]: 15 through 19. I'm not reading in here any and maybe that's what the recommendation would be all about, but it feels a little fuzzy to me, and I didn't know if that like, I'm trying to glean the intent here that court release form would be so that the person could say, a person who's found not guilty by reason of insanity are incompetent to stand trial, but can then make a decision about allowing victims access to information about them?

[Martin LaLonde (Chair)]: I think so. I'm not, okay. So you're missing comments.

[Angela Arsenault (Member)]: I'm not understanding that one, but I didn't know if it was me not reading it.

[Martin LaLonde (Chair)]: Okay.

[Kenneth Goslant (Clerk)]: Backing up at page eight, this language that we've used before, and I don't know why I'm catching this now. Maybe I'm a little smarter. I doubt it. But 19, for purposes of report required in this section, the department shall consult. And then you got that whole list on page nine. Right. Consult. Does that mean they all have to agree?

[Martin LaLonde (Chair)]: No. Any of them have to agree?

[Eric Fitzpatrick (Office of Legislative Counsel)]: No. Not necessarily. I think the the consult language that we used before is more of a and you do use it sometimes for reports is to say you wanna make sure they've touched base and gotten the views of this entity, whoever it may be.

[Kenneth Goslant (Clerk)]: But What happens if they vastly disagree?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Then they've done their duty if they've consulted, but they can still submit the report that they as long as it satisfies the requirements of Lyon's subsection b, the requirements in one, two, and three, then I think they've done their duty. They consulted, and then they make their own recommendations.

[Kenneth Goslant (Clerk)]: Okay. So they consult. They've done their duty. Yeah. I'll I'll I'll agree with you there. Right. But we all know we're going back to court, and we're gonna go and we're gonna keep going and have a file of a motion or whatever these lawyers do and all that stuff. So, I mean, it's just gonna be an ongoing thing. So that's to me, that language error is opening up a can of worms. I can't wait to hear lawyers. Tell me I'm wrong on that.

[Angela Arsenault (Member)]: This is just for the report.

[Kenneth Goslant (Clerk)]: No, I get it. I get it, but they have to, I mean, it

[Martin LaLonde (Chair)]: clearly

[Kenneth Goslant (Clerk)]: says consult, and then you've got pushback on that, and that's going to lead to more discussion, longer delays, for whatever, and it affects the people the most that I think we're trying to help in this bill, if I'm correct.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. It's true that that whatever the testimony of those listed, one, two, three, four, five, six, seven, eight, nine different entities are, presumably, they probably will have different opinions about different things.

[Kenneth Goslant (Clerk)]: Try getting nine people initially.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, that's the duty of the department to come up with a report.

[Kenneth Goslant (Clerk)]: They're all waiting over there.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Anything else for Eric? Thank you. Thank

[Martin LaLonde (Chair)]: you, Eric. Sure. And so we're gonna go until 04:00, and we have a couple more witnesses. We'll start with Chano. Thank you for being here, Charlie. Nice to

[Angela Arsenault (Member)]: see you. Thank you. Good afternoon.

[Chani Ghoshal (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: I'm Charlie Gosselman. I'm the policy director at the Vermont Network Against Domestic and Sexual Violence, and we appreciate the opportunity to testify in support of H627. In court procedures, particularly in forensic cases, there is always a balance to be struck, And the law must create clear structures that accommodate the needs of individuals to access a fair trial and the mental health treatment they need, alongside the needs of victims to heal, remain safe, and trust in the justice process. And we often hear from survivors and advocates, and I know the committee over the years has also heard this, that Vermont's current laws do not strike that balance appropriately in forensic cases. Whether an individual who has caused harm is adjudicated in the criminal court system or in family court, a victim remains a victim. However, victims' rights and information are significantly reduced in the family court system. Currently, victims in forensic cases are only entitled to notice of some court hearings, not all. They do not have a right to be heard directly by the court, and they are guaranteed only ten days notice before the person who harmed them is discharged into the community. No matter how serious the offense, a person who has caused harm can be transferred from a secure facility into community based care without notice to the victim. And in a small state like Vermont, this has resulted in victims unexpectedly encountering the person who has harmed them at their place of work or while running an errand in their neighborhood. This process is very destabilizing and traumatizing for victims, and they deserve better. Six twenty seven is a relatively narrow step forward within the broader conversations around forensic cases that are happening in this building. It provisions are concrete, meaningful steps to improve victim experience in forensic cases, and were informed by feedback from survivors, recommendations from previous studies and task forces and models already present in Vermont, including Vermont's youthful offender statute. In short, H-six 27 aims to meet victims' needs in a few different ways. I'll talk about them. And while I'm not necessarily in a position to answer all of the great questions that came up in committee discussion, I'm happy to address a few of them. So the first need that this bill addresses is timely access to information about court processes and significant changes in status, like transfers to community based settings or discharges. Timeline notice allows victims to understand how a case might proceed and make informed choices to preserve their safety. Victims can opt out of any or all of these notices. This is a conversation that we've been having across the hall in corrections and institutions around victim notification and different state entities requirements. And if it states in the statute that victims are provided notice and doesn't include an opt out provision, it doesn't provide victims the choice that they deserve around what information they want to have access to and not. So that's why the opt out language is there. On page two, there was a question around how does that opt out language interact with the system for a person to file notice that they are a victim in the proceeding under this factor? So the state's attorneys can speak a bit more to the exact process of victim notification. But in current cases, there is a victim of record, and these are the folks that are getting all of the legally required notices around the case that are outlined in these statutes. Sometimes there are more victims that are very deeply invested in a case beyond a victim of record. So for example, there may be a victim of homicide whose sister is very invested, as well as their former partner and maybe an adult child. Creating a process so that if all three of those people would like to be victims of record, have the opportunity to receive notice, have the opportunity to be heard in a court, that they are able to do so. And it creates a process to petition the court to allow that to be the case. The state's attorneys, victim advocate, or the other prosecuting officer would be the person providing notice in these cases. It wouldn't directly be the court. So I hope that that is clarifying. The other piece around timely notification is the word timely.

[Martin LaLonde (Chair)]: Before we go to that real quick, on the page two, line ten and eleven, it is saying option to receive notifications from the court. Shouldn't it be the state's attorneys there?

[Chani Ghoshal (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: I think it should be whatever language is used in the other pieces of the statute around the state's attorneys or the attorney general's office. Of course, recognizing that the victim advocates are the people who are doing that notification. The language in here is just the language mirrored in the rest of the statutes.

[Martin LaLonde (Chair)]: But it's not really shouldn't be the court. It should not

[Eric Fitzpatrick (Office of Legislative Counsel)]: be the court. Okay, thank you.

[Chani Ghoshal (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: The word timely, I agree, can mean different things to different people. Notification in a timely manner was language used in the updated Youthful Offender Victims Rights statutes that I'm sure came through this committee, I believe in 2022, 2021. There are many demands on this system, including victim notification. The situations are very individual. We think that it's important that victims have access to timely notification and putting exact number of days might not necessarily be appropriate for the situation and what the victim's needs and the capacity of the offices that are doing that notification.

[Kenneth Goslant (Clerk)]: You wanna try ours?

[Chani Ghoshal (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: I think that you could ask the attorney general's office and the state's attorneys what they think is best in those cases.

[Karen Dolan (Member)]: Thank you for bringing it. I do think the timely piece can be problematic. And I appreciate that you're referencing where we put it in before. And one of the things that we've heard, if you put it in every statute, then it makes it very hard to decide what is timely. And the other piece that I worry about by putting it in there is that it sets victims up that they have an expectation of timely that might not match what a judge or somebody else's definition of timely means because it's not fully defined. And knowing that the goal of this bill is to help victims feel part of the process of empowered, Curious to your thoughts on that. Do you feel like there would be that conflict or during the time like that's what I worry about. It's like timely for me means within three days, but it could mean in the judicial system, whatever, ten days.

[Angela Arsenault (Member)]: Yeah.

[Chani Ghoshal (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: I think it's a very fair question. It's something that I can certainly think about, and I'd be curious to hear from other witnesses on. But I think you're exactly right. There are so many aspects of this process that are so confusing and challenging for victims to navigate through. We're hoping to take some steps forward here and recognize that it may not fix everything.

[Martin LaLonde (Chair)]: Recommended ghosts might open up a can of worms with this. Wow, we do have a lot of timely numbers. Things have to be done within thirty days or six months or whatever. And what's going through my mind with this is to kind of evaluate who all the players are and all the departments and whatever entities have the potentially the most or the longest the number would be the biggest as far as timely goes if we were gonna go with a number to go with that. You know, if there's gonna be, you know, six different departments involved and one department can do things in in three days, but somebody else can do it in thirty. If we're gonna go with a number to make sure that we we go with a big enough number, I guess, to cover everybody would be important to me.

[Chani Ghoshal (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: I think it's reasonable, and that's something that I'll think about and would certainly welcome other witnesses, thoughts who are more involved in the victim notification process day to day than I am. Next, what this bill does is support victims in having a clear understanding of their rights as victims in a case. Forensic case procedures are very complex. They're also different than other criminal procedures. And an overview of their rights as a victim will support them in meaningfully exercising those rights. Next, the bill addresses a victim's ability to be heard by the court at key decision points. Currently, can share a victim impact statement via the prosecuting officer, so not necessarily themselves. They don't have a right to speak to the court directly, providing victims with the opportunity to speak for themselves and support their healing and offer them agency. There were a few questions about victims' ability to speak directly to the court on page five.

[Kenneth Goslant (Clerk)]: Before you go, think I can ask a question.

[Barbara Rachelson (Member)]: Yes. So we

[Martin LaLonde (Chair)]: can spike up a little bit.

[Kenneth Goslant (Clerk)]: So the victims in most cases, and certainly what we're gonna see firsthand again tomorrow, they're already traumatized quite a lot. Right? And they're already overloaded, and they're trying to and I think you used the word, the complexity or you know, complex. But point of the matter is it's it is a very complex matter that you're dealing with. They're already more than likely very overwhelmed. And then who's guiding them through this whole process?

[Chani Ghoshal (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: It really depends on the person, the circumstances of the case, and also the part of the case that the victim's engaging in. So for example, if someone's found not guilty by reason of insanity, their kind of court case is done, they might be supported by a victim advocate through a state's attorney's office or the attorney general up to that point. And after that, they may need to seek different systems of support.

[Kenneth Goslant (Clerk)]: Outside the judicial system.

[Chani Ghoshal (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: That's right. And so, part of our investment in this bill is that Vermont Network member programs in cases of domestic or sexual violence that are in touch with the forensic system do provide support to victims in an informal way.

[Martin LaLonde (Chair)]: Thanks.

[Chani Ghoshal (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: And it's very complex. I think there are many victims who would not want to provide an impact statement. There are many victims who would like to provide an impact statement and that their ability to be heard by the court, their ability to choose if they do that, is a very important part of procedural justice.

[Kenneth Goslant (Clerk)]: Right. Yeah, I'm just trying to think how we can make this easier so that victims, and you see it all the time, so the victims come forward a lot easier to get across, I think, what all of us are trying to do in this room. And

[Chani Ghoshal (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: I think that this bill does that in a few ways. I think providing victims with a clear overview of their rights in forensic cases will be very helpful in giving victims an understanding of what they can expect, and also creating opportunities for them to get access to information will allow them to follow the process and also make decisions to keep themselves safe.

[Martin LaLonde (Chair)]: Great. Yeah, that's good.

[Chani Ghoshal (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: So on page five, taking a look at the victim may express their views concerning the offense and also their preferences for a person's placement and care. So if you look on page four, the different circumstances that kind of proceed that victim's ability to speak to the court, There is a discharge from the care and custody of the commissioner of the Department of Mental Health. There is also a discharge from a hospital or a secure facility to the community on an order of non hospitalization. What we have heard from victims is that it when a person is moving from a secure facility to a community based facility, it's often a priority that that they not be in a community based facility that is in the place where the victim lives. And so providing the victim with an opportunity to speak to their desires is important.

[Martin LaLonde (Chair)]: So this is on page five, line 13 to 15. That's right. Right,

[Kenneth Goslant (Clerk)]: right. Well, we have to work toward that part as well.

[Martin LaLonde (Chair)]: So my concern, and I'm sure we'll hear from others, does the victim really know where the person should be placed and what kind of care level they should receive? What I'm hearing you say is it's the location, not necessarily what particular treatment they're receiving. Is that right? Think

[Chani Ghoshal (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: it really depends on the victim. We work with victims who are involved in family violence cases that are in the forensic case system. They may want the person who caused harm to not be in a physical location close to them. They also may be very deeply invested in the quality of their care and want to speak to what they might need and their perception of it. Of course, I think all of these different players are bringing different perspectives and different levels of expertise. I think that a victim's lived experience is one part of that expertise. It's not just location. The next piece that the bill looks at is dedicated staff support for victims as they navigate what we know is a long and confusing and demanding process in a forensic case. When a person is found not guilty by reason of insanity or incompetent to stand on trial, DMH is managing the person who caused harm's care. Victim access to information about that case at that point is very greatly reduced. And it can be very complicated as a victim to navigate that part of the process. A designated staff person at the Department of Mental Health could act as a critical liaison between victims and the department communicating what can be shared, explaining procedures and helping victims know what to expect. And as I noted to representative Dolan, this bill is not the end all be all, it's a step forward. What we're really hoping to do in this report from the Department of Mental Health is to continue the conversation on improving victims' rights and experiences in forensic cases. And we feel like this could provide the legislature with some valuable information to build on reforms for the next legislative session. Representative Arsenault, I believe that you asked a question on, let's see, page nine around victim access to information, including a court release, allowing people who are found not guilty by reason of insanity or incompetent to stand on trial to provide victims with basic access about the person's location and notice of the person's court proceedings. I'm sure the Department of Mental Health and other entities can speak to the information that is private healthcare information at play in these situations. But what we have heard from people who have caused harm after they have reached clarity about what they did, they are profoundly devastated. And when we think about what those people need and what victims need, one of the opportunities that we've seen is potentially a voluntary court release to say, Of course, you can't have access to all of my health information, but perhaps you can know the facility that I'm being held at, and I will voluntarily release that to you as a victim. That is a part of this report process because we want to talk about that more. We wanna flesh out what that might look like. We want to evaluate other options, but we think it is one option that should potentially be considered, maybe a standardized process of asking the person if that's something they would be willing to do.

[Angela Arsenault (Member)]: Can I ask that question? Can you share anything about that person's ability to make that decision? And you said once they kind of If we're not restoring competency, as far as I know, in the state

[Karen Barber (General Counsel, VT Department of Mental Health)]: yet, I'm just wondering

[Angela Arsenault (Member)]: about their ability to make those types of decisions.

[Chani Ghoshal (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: Of course. I mean, I think it's a great question. I think that the Department of Mental Health might be able to speak to it better. But of course, we want to ensure that various people who have greatly reduced power in the system, both the person who is in the custody of the department and victims, have structures around them that properly accommodate that power differential.

[Angela Arsenault (Member)]: Yeah, okay. And what was originally What I was stumbling on was trying to imagine just the mechanism, I guess, for releasing that information. I understand that it's a court release. Does that mean the information would be coming from the court to the victim if it were, if the person allowed that? Is that the idea?

[Chani Ghoshal (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: I believe that it would be most likely either the Department of Mental Health or the other kind of health care facility that is managing that person's care. But of course, many more discussions to be had about whether or not that's viable or desirable. Okay, that's helpful anyway. Thank you. Thank you. The last thing that I will add is that we've been working closely with some surviving family members of a homicide victim on this issue and legislation. And I've been in touch with the chair about the committee having opportunity hear directly from them. And we just appreciate your willingness to provide that opportunity in the coming days or weeks. I thank you for your time and consideration on this meaty issue. I'd be happy to answer any more questions if you have them.

[Martin LaLonde (Chair)]: Good for now. It's probably an iterative process, would imagine. But also, I did suggest on Friday afternoon, if that witness is available, if you could let us know.

[Chani Ghoshal (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: I appreciate it. We are going back and forth on schedules. I'll let you know as soon

[Karen Barber (General Counsel, VT Department of Mental Health)]: as I can.

[Martin LaLonde (Chair)]: No, that's fine. I appreciate it. Do you have questions? All right, thank you. So we'll go with Karen. And Karen, if we run out of time, because I know that some folks have to leave at four, We will certainly have you back in to conclude the conversation. Sounds great. At a minute ago, we'll get started.

[Karen Barber (General Counsel, VT Department of Mental Health)]: Sounds great. So for the record, Karen Barbara, I am general counsel for the Department of Mental Health. I'm going to take a step back because I think that's maybe a helpful way to start. We believe that there are gaps in the system. I've been testifying in front of most of you for probably at least eight years about the gaps in the system. And so we are not here to say that there are not gaps in the system or that the concerns raised in the previous testimony or other people you're going to hear are not valid. And we have a system that doesn't necessarily lend itself to the fixes that we're trying to make. And so what we've done many years in a row is to try to come to you and say, this is not the fix, but here are some options to make fixes. And unfortunately, I think frustrating for everyone, we haven't been able to make that progress. And so we have some more ideas and we're here to be a partner. I also want to make really clear that this is an agency issue, agency of human services. And we've come to you as a group several times to say, because people are found incompetent for many reasons. Mental illness is one, substance use, developmental disabilities, intellectual disabilities, TBI, dementia. And I think there's a lot of frustration because people assume if you're found incompetent, oh, you must go to DMH, right? It's DMH's problem. And that's just not reality. In fact, most of the cases that people are really concerned about are not us. It is the agency as a whole. And so we work as an agency to help problem solve. But we are a custodial commissioner. Dale has a very small population that's under its custody. And then that's it. And that's frustrating because I think people look to us because we do have some of the facilities. But that doesn't mean that we can manage everyone. Right? It has to be a holistic approach, which is what we tried a couple of years ago. When you're talking about mental health, we have a civil mental health system, and we have a criminal justice system. Those systems were not designed to be the same thing. They are not the same thing. They have very different laws. We are very heavily regulated. DMH is a health care provider. We provide health care. We do not oversee public safety. And we have very strict regulations and laws that we must follow. And our job is the mental health of people under our custody. And that's it, right? We are focused on what their needs are. And when they come into our custody, it's because they have a need that we can provide. And we oversee that. That is very different from public safety or other needs of other individuals in the system. Our focus is just on the person that's in our custody. For us, it doesn't matter where they came from. It doesn't matter what happened to them before. We treat everyone the same. We do not have forensic facilities. We do not have a forensic system of care in Vermont. And so we talk about forensic cases, but that actually doesn't exist. There is no forensics. We have people that are considered forensic because they touch the criminal justice system. But in our system, we don't We tag them that way for payment purposes because you cannot use Medicaid. But otherwise, they get the exact same treatment. There is no difference. And so I think a lot of the frustration comes from that. And there is a desire to, and several years in a row, I think to your point, right, this has come up before. And what happens is we keep trying to put changes to the civil system to try to fix what actually is a need that's missing in Vermont, a whole need, right? And you can't fix it by trying to just put things in our system because we have laws and regulations that govern. We can't. The commissioner cannot give notice to victims, right? We're HIPAA, right? There's not only the feds that could come after us, but Vermont has a private right of action, right? We could get in trouble for We can't share that information. With all due respect to victims, when someone is coming into our custody, the only thing we're looking at is their mental health needs. And so their experience is incredibly important, but not at all relevant to our proceedings. And the reason this did come up a couple of years ago when we kind of compromised on, they could submit a written statement. But we made really clear at the time, it would actually have no impact on the outcome. It's not something the court can consider. And in fact, it's actually not a court decision. It's a DMH decision. Because when someone is in our custody, we alone make the decision about where they're placed and whether or not to keep them in our custody. Why? Because we have the burden. Right? We have the legal burden to say if they're under our custody, we have to be able to meet that burden. The criminal court has ninety days, and then everything switches over to family court. And in family court, we are making all of those decisions. And again, we're making those decisions based on the clinical needs of the individual because that's our job. And so we did just get confirmation a little bit ago that we do the governor, we worked closely with the governor's office to come up with some proposed language. I know that Katie went through the bill earlier and sent a judiciary, but it sounds like you might be the point so I can send it to both of you. What we are looking at as the executive is really how do we solve this problem holistically? And so we know that we are, I think, the only state without a forensic system. And so a lot of the things that victims want here, which again are very valid and we appreciate and support, could really be encompassed in a forensic system. And so what we're really looking at is how do we do that as a whole? How do we make sure that victims and public safety is in the forefront, but also that people are getting connected to treatment? And if they can and should be held responsible for their actions, how do we do that? Because we also don't have competency restoration. And so by trying to do one offs, we're really kind of doing a disservice to the system because this is a whole systems issue. We're missing an entire system in Vermont, frankly. And we can't just try to put things places. We need to really think about it as a whole. And so our goal is to work with anyone and everyone together. And I think I also want to make clear that DMH wants to be a partner at a table. When we get invited, we come and we talk and we present. I work closely with Jennifer Pullman on a lot of things. I know that this maybe wasn't a bill that they were consulted on or had a lot of work with, but we're happy to come to the table and talk with folks to try to, on the front end, come up with ideas and solutions. Because a lot of this simply is just not possible under our system. It's not leapfelt. Like, we literally just can't do it the way our system is designed. Appreciate the intent, we'd love to be a partner to think about how to do it. But it's just not possible under our system. But we do wanna see a system where it's possible because we understand how important it is. So I know we don't have a lot of time, so I kind of wanted to do high level. I can dive as deep as you want, but that's kind of our general thing. And I'm hoping that once we get you some language, it's not going to include this piece because this is new to us. We just saw this. But I think you can very easily think about how to incorporate victims' impacts in kind of a forensic system, which is really where it fits. And which is where a judge can say, I'm gonna take that into consideration. And because this is based on public safety, not on mental illness, then it makes sense in this situation to kind of really take that into consideration and think about where someone goes. Because those are very different things that you're looking at. So those are kind of the main points. I don't know how I'm doing. Try to be quick.

[Martin LaLonde (Chair)]: We probably have some questions, but I just have one more I'd like to divide this bill up a little bit as far as what it's asking for. There's a notification component. There's the what kind of input can individuals provide. And then there's the liaison. I'm not sure I understand why that there's a bar on the notification Under HIPAA at least, there are exceptions to HIPAA and information can be released if it's public safety. There's a number of exceptions. Or tell me, I mean, there's a private right of action that you mentioned. Does that change that? Does that narrow what's allowed as far as a notification?

[Karen Barber (General Counsel, VT Department of Mental Health)]: So I think that the notification part of Well, there was a notification provision added a few years ago, and we are complying with that. I think what's confusing maybe is that the criminal court only has jurisdiction for ninety days. And then it goes to family court. By statute, those are all confidential. That they're not there under these provisions. It's an entirely separate process. And so we do get notice now. Our concern with some of the notice language here is the thirty days, because that's simply not feasible. So we are hospitals that are heavily regulated by CMS and Joint Commission. And there's also federal and state law, unless restrictive. But as soon as someone doesn't need to be in our facilities, we have to legally discharge them. We also have to in order to maintain our accreditation and certification, or else we lose Medicaid funding. So thirty days, we can't keep someone for thirty days when they don't need to be there. It's just like you have a heart attack, right? And you're in the hospital and you don't feel well, but your doctor is saying you're ready to be discharged. They're not going to keep you. Mental health is no different and it shouldn't be looked at differently. It's the same. It is an illness. And as soon as you are treated, we have a system of care where it's acute, and then you are discharged and you get care in the community. And so while I appreciate the idea behind wanting to have a runway, because it's not a forensic facility where you can just keep someone, but instead these are heavily regulated hospitals that need to function as hospitals, we can't do that. So we do give notice in the ten days. I think more of the frustration comes in when someone's Maybe the decision is not what they wanted or something like that. Because there is a desire to keep people locked in facilities. And I get that. There are real public safety concerns. But people can and do remain dangerous for reasons other than mental illness. And treated individuals with mental illness can still be dangerous. And there's this idea that somehow we can just make them not dangerous and we won't let them go until they're and that's not reality. Because this standard is not just danger to self or others, it's due to mental illness. That's the key. And people, lots of people are dangerous, right? Whether or not they have mental illness and just because they're treated doesn't mean they stop being dangerous. So I think it's much more complex than just notice, if that kind of answers your question.

[Martin LaLonde (Chair)]: Yeah, but I just wanted to nail down that there is room in notification. In fact, we're providing notification.

[Angela Arsenault (Member)]: We are doing that.

[Martin LaLonde (Chair)]: Yeah, that is happening.

[Karen Barber (General Counsel, VT Department of Mental Health)]: Yeah, the thirty days is problematic.

[Martin LaLonde (Chair)]: Yeah, right. And if there's nothing else, I mean, well, I think there will be more as we get into the forensic facility and those kinds of things. Notification and expanding that is perhaps a doable thing.

[Barbara Rachelson (Member)]: So I'm wondering, and it's helpful to have you remind us all about the many different reasons someone is not competent to stand trial. So if somebody has dementia or if somebody has a very, very low IQ, are those cases are you becoming the custodian? Or if not, who is right now? No one.

[Karen Barber (General Counsel, VT Department of Mental Health)]: Right? So I think that is part of folks' frustration. There's a desire to put everyone under our custody, but you can't because there are legal standards to come under our custody. But yeah, there's a gap. Right? There are people that, because we don't restore to competency, if they're found out confident, they're just kind of out there. And there are two groups I would say that we're really talking about. We are talking about folks that are committing very serious felonies. We're also talking about the folks that are committing misdemeanor after misdemeanor. In a lot of other states, those folks are diverted. So they go to diversion. The competency isn't considered, and they are hooked up with treatment, and there are incentives for them to comply with that treatment because if they don't, they face jail time. In Vermont, we're not doing a good job at diverting folks, but instead we're just giving everyone a competency eval. Competency evals are not treatment. It's not a clinical diagnosis. It's simply, can you participate in your defense? Talk to your lawyer. And so there's this idea though, that if somehow they are found out competent, something's happening to them, they're being restored, they're getting treatment. That's not really accurate. And so what we want to focus on is actually how do you at the beginning, for those folks where it's appropriate, divert them to a better path, where they're getting hooked up with treatment, but you're also looking at public safety. You're able to make sure the victims are having input and knowing what's going on. And there are outcomes that are much more positive. So, yeah, I don't know if

[Barbara Rachelson (Member)]: that is. So it's interesting because the part of the bill that says a case manager for Department of Mental Health still will be that won't necessarily address the people that are not

[Karen Barber (General Counsel, VT Department of Mental Health)]: Yeah, and we, again, with all due respect to the idea behind it, this is not a DMH role. We, again

[Barbara Rachelson (Member)]: feeling that, then I was like, well,

[Angela Arsenault (Member)]: okay, yeah.

[Karen Barber (General Counsel, VT Department of Mental Health)]: Our job is to focus on the folks under our custody and get them mental health care. It does make sense for victims to have someone that they can talk to, but it's not us because that's a conflict. We focused on that. We can't share information. We don't have policies and procedures, right? We have laws. And the laws say when someone can come into our custody, we have regulations that say when and we don't make the decision, that's the other thing, only admitted physician makes those decisions, even at VPCH, because VPCH's state hospital is CMS certified and Joint Commission accredited, which means the only people that can admit or discharge from there are licensed professional doctors. And so we don't get to overrule them. A judge can't overrule them. And we are still fairly limited in that. And so while I appreciate the idea behind it, I think it's just setting folks up for frustration because we can't assist the victims. That's not our job. There are people out there that could do that and should be doing that. It's not us, though. And our job is not to improve victims' rights and experiences in forensic cases because we're not we are a civil mental health system. I think that you should have a different kind of system where they do get that help. It's just not ours. It needs to be a holistic approach where really you're focused on public safety and not mental health.

[Kenneth Goslant (Clerk)]: So if we had the forensic facility that we've been talking about for years and have done nothing because nobody wants it in their backyard, wouldn't that fall more under you that we could do a better job for the people that need help in

[Martin LaLonde (Chair)]: Vermont? So that fall more under

[Kenneth Goslant (Clerk)]: your jurisdiction or no?

[Karen Barber (General Counsel, VT Department of Mental Health)]: No, I think that what the proposal is, is the Department of Corrections, because again, it's not a mental health issue. It would be designed to not take people out of our If someone needs to be in our hospitals, they need to be in the hospital. They shouldn't be in a forensic facility if they need a hospital level of care.

[Martin LaLonde (Chair)]: Mental health.

[Karen Barber (General Counsel, VT Department of Mental Health)]: Mental health. What we're talking about is folks that either do have a mental illness and don't need to be in the hospital anymore or ever, and they need a secure place to go, or someone with substance use, someone with TBI, someone with dementia. Mental health will of course play a role because it's an agency wide approach and it's important that every single agency show up and participate, but it's not purely mental illness. And if someone does really have those high needs, we don't want them to be anywhere else than a hospital. We're not trying to create a forensic hospital, because that's not great care. If someone needs to be in our hospitals, we want them to be there no matter where they come from.

[Kenneth Goslant (Clerk)]: But we don't have that

[Martin LaLonde (Chair)]: facility even now to handle the mental health aspect of it, correct? We

[Karen Barber (General Counsel, VT Department of Mental Health)]: do. We do have plenty of folks that come in from the criminal justice system that are in our hospital settings right now.

[Kenneth Goslant (Clerk)]: But it is still limited, and it's very complex to get to people in there with I mean,

[Martin LaLonde (Chair)]: we hear all the time about people that should be in a mental health facility that are rejected. Am I

[Kenneth Goslant (Clerk)]: really getting in the weeds?

[Karen Barber (General Counsel, VT Department of Mental Health)]: No, but I think that was my point earlier where a lot of people think it's mental health, but it's not, or that's not your primary, right? Because we are the only locked setting and because mental health needs and substance use needs and intellectual disability needs and TBIs, they're all very complex. It's very easy for someone to say, well, of course, they're mentally ill. You should just put them in a hospital. But it's much more complicated than that. The cases you're hearing about where they're not in

[Martin LaLonde (Chair)]: the hospital, it's because they didn't meet that clinical criteria. So, man, I gotta go. So, anyway, so is the reason why this is so complex is because legislators have made it virtually impossible for you for for them to get the help that they need. Like like, it it it people that need help, it it shouldn't be this complicated. It I mean, it sounds complicated to me. You're the professional. I'm just Kenny. But you know what I'm saying? It's like it's like it's it's like there's people out there that and you know they need help. They need something, and they don't know where to go. And I sure as heck don't know how to get them to the right place. And then they'll go to a place and they get rejected and then bad things happen.

[Karen Barber (General Counsel, VT Department of Mental Health)]: Yeah, I think that's why we, one, want to think about really focusing on diversion, which is a way to connect people to treatment earlier in the process. And two, that's why we think there is a gap, right? I do believe that if someone has a mental illness and needs to be in the hospital, we do a good job at treating them. We've got really good hospital facilities. If you look at other states, our hospitals are really nice and we do a good job. What we don't do a great job at, where the gaps are, is the folks that don't need to be in the hospital, but still have high needs and are public safety risks. Don't have a place for folks like that that is secure, that can keep them secure, that can focus on public safety while getting them whatever treatment they need, whether that be substance use treatment, whether that be helping them manage their TBI or help them with their dementia. We don't have that.

[Martin LaLonde (Chair)]: And what would that facility be called? Or how would that be looked at or something? I

[Karen Barber (General Counsel, VT Department of Mental Health)]: mean, I think that's along the lines of the forensic facility that we've talked about. I think what we wanna try to maybe focus on this year is really narrowly tailoring it so that maybe it is more palatable to folks. If we really focus on for the high level folks, competency restoration and a secure facility for folks with very serious crimes, and then focusing on diversion for those folks that are misdemeanor or lower level felonies, that there's a way to address both sets of issues talking about public safety and treatment.

[Martin LaLonde (Chair)]: Thank you.

[Angela Arsenault (Member)]: So Karen, I'm wondering, can you help me understand I think I know, but I would like to hear you to make sure I'm understanding why thirty days notice is a problem work, but ten days is not.

[Karen Barber (General Counsel, VT Department of Mental Health)]: Know Yes. It's just a So frankly, ten days is a problem because our regs require us, as soon as someone doesn't need to be in our treatment, we need to discharge them. There's federal law and state law that says we have to serve them in the least restrictive. And then both CMS and Joint Commission say you need to discharge someone as soon as possible. So we manage with the ten days. It's not always ideal. Our clinicians are really good at trying to, as soon as they think someone's getting ready for discharge, we're providing that notice because we've got to get them out. But thirty days is really unmanageable in a hospital setting because people are changing all the time. These orders are only ninety day orders so that you're only giving them two months to decide how it's looking and then you're getting in. So again, those are really clinical decisions. Thank you.

[Angela Arsenault (Member)]: So it has mainly to

[Karen Barber (General Counsel, VT Department of Mental Health)]: do with the asking you to predict when someone's gonna be ready. Okay.

[Angela Arsenault (Member)]: And then curious about the I think you said very clearly that DMH would not be the entity that should house the theoretical victim liaison position. And you've mentioned that this is an agency issue. So where would DMH recommend that within the agency of human services? And maybe it's not within the agency of Indian Services, but since DOC is also I'm just wondering, do you see that position living somewhere in the agency? And if so, where? Is it a newly created department of something or other?

[Karen Barber (General Counsel, VT Department of Mental Health)]: So I was a bit surprised to see that just because my understanding was that the state's attorneys does have their own and the AG, and we actually often work with those folks. So I wasn't aware that there was an additional need. I think it would be helpful to understand what exactly the need is other than what's already being provided and what would be different. I think if we had a forensic type facility at DOC, that would make sense. I also think because that would be more of a higher level, we were looking at really expanding diversion, that it also makes sense to maybe have someone within that type program because that's where you're going to really be touching folks. So that I also did just want to say, and I know who left, but the friends that we've had friends at working groups. And we've again and again, and we've never come to consensus. These are very complicated. I am not sure that there's One, I don't think it should be DMH that does this because we did it before and it didn't work. And two, it's not really Again, it's a bigger issue, but I'm just not sure if a working group is going to get you what you want. It could be, though, that you get someone that comes in and compares our system to other systems and makes recommendations about what makes sense in terms of a confidence restoration program or a forensic facility. Or the ideas that we have. It could be that it makes sense to have someone come help us flush those out. But I'm not sure working work is going to get you what you want because we've done them. Yeah. Say that. We're

[Martin LaLonde (Chair)]: Well, Senate judiciary is gonna resolve all this. Send it over to us and then we'll make it beautiful. I appreciate it. So like I said, we are gonna take some more testimony on this tomorrow morning and then we'll probably put it on pause to try to figure out the bigger picture and how this fits into the bigger picture. So and we may have some more testimony Friday afternoon as well. But we're adjourned until tomorrow at nine. We're gonna be