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[Rep. Martin LaLonde (Chair)]: Welcome back to the office judiciary committee and continuing testimony on s one ninety three. We're gonna hear from the perspective of legal aid. And welcome, Jack, if you can identify yourself for the record and then pursue or can continue with your testimony. Thank you.
[Jack McCullough, Director, Mental Health Law Project, Vermont Legal Aid]: Okay. Thank you, mister chair, members of the committee. I'm Jack McCullough. I'm the director of the mental health law project at Vermont Legal Aid. And, I have to say that it's been an interesting and enlightening morning listening to the, to the discussion and the comments. And so it it helps me focus, my thoughts on on where I think we stand with with the, with the bill as it's, as it's before you now. And so I'll just hit what I think are the, the high points for me and really focusing primarily on what I think are the judiciary related elements of the of the bill. First off, I I think it was encouraging to see that the bill now assigns the primary the responsibility for the care of these individuals to the agency of human services rather than, Department of Corrections. The question I have, and could be because it's, I know things are still in flux between different designations and and different state entities, but, I see at page 15 of the bill, it still situates the forensic, facility within the Department of Corrections. I've previously expressed my concern about having it in the Department of Corrections, and I would hope that by assigning, overall responsibility to the Agency of Human Services, we would still retain the option of having a forensic facility within, DMH rather than Department of Corrections because I continue to think that that is a more appropriate, setting for for the services that are gonna be provided and for the housing of the individuals who are going to be treated.
[Rep. Martin LaLonde (Chair)]: So just on that, Jack, that's the decision as far as the where and who runs it is not really in this committee. It's in corrections and institutions primarily as informed by health care and human services. And we're really focused on the due process issues and equal protection issues of the process of, individual being committed to the forensic facility. So just so you understand kind of the breakdown of where jurisdictions are with with this bill.
[Jack McCullough, Director, Mental Health Law Project, Vermont Legal Aid]: Great. Thank you. One of the things that I think is is an improvement in the bill over previous versions is that there are appear to be a number of places in the bill where I had expressed concerns that the burden of proof for certain hearings would be placed on the, defendant to prove that they're not a danger rather than placing the burden of proof on the state to prove that the person is a danger. And I think that was done in every one of those places that I was raising concerns about, and I hope that's the case because I certainly support that change. I think that, when we're talking about due process and what processes do to the people who are affected by this, it's essential that if the government seeks to put somebody in some kind of, detention that the person has a a due process right to have the government prove that they they need to be detained and not to have the person prove that they no longer need to be detained. And so I think that that's, assuming I haven't missed any spots there, and I know Eric's not in the room now, but assuming I haven't missed any spots there, I think that's a positive change. There are a number of procedural questions that came up, both in the review of the bill and in the commentary, particularly of Matt Valerio, where there there are questions about what what the hearings are gonna be like, how the hearings are gonna be conducted, and and this is a point where I think there's there's issues with the bill because, that I think we're better off under current law because under current law, under title 13, it's, you're probably aware that, title 13 in providing for hospitalization hearings specifies that the procedure for the hearings tracks the procedure that, is used under Title 18 under commitment, civil commitment cases. And I think that a lot of the questions that come up could be dealt dealt with better if we simply look at that provision of title 13 and I believe it's 4,821 that essentially says procedures for hearings of persons with a mental illness shall be as provided in 18 VSA chapter 181. Procedures for hearings for persons with an intellectual disability shall be as provided in 18 VSA chapter two zero six, sub chapter three. And so I think that would address some of the questions that were raised this morning. One of the questions and one of the questions that, of the specific questions, or concern that I have and that Matt Valerio also raised was, well shouldn't the defendant in one of these hearings have the ability to bring in their own, to have an independent psychiatric exam and have an expert to potentially challenge the expert witnesses being presented by the state. And so that specifically gets us to the rights provided in title 18 that include the right for the person to call or to obtain and then call as a witness an independent psychiatric exam.
[Rep. Martin LaLonde (Chair)]: Can I ask a question on that? So on page 16 of the drafts, I think we try to get at that lines 15 to 18, where prior to any hearing under section 4815A or 4819A of this type of the person shall be required at the request of a party. Oh, I see. That's a little bit different. To permit an expert assessment of the person. Yeah, that's I'm sorry, a little bit different than what you're talking about. But yeah, I do have a note as far as when, as far as from Matt Valerio wanting to make sure there's an opportunity for the person to be able to ask for an exam.
[Jack McCullough, Director, Mental Health Law Project, Vermont Legal Aid]: Yeah. And and we're so we're we're together on that. Yeah. Another question that relates to these hearings, and this is a major question that I've pointed out in a couple of different committees, is, on page twenty twenty one, the issue about section six of the bill applicability of rules under subsection three, there's a provision that says that the Vermont rules of evidence shall not apply to these proceedings. And I think that is a serious, that's an invitation to serious problems because the point of the rules of evidence is to ensure the accuracy of judicial decision making by letting in relevant and reliable evidence and excluding evidence that is either not relevant or is not reliable. And so things like multiple levels of hearsay where I heard someone tell me that that they saw somebody do such and such, well we don't know what actually happened. And if the defendant is faced with that, they don't have the ability to cross examine who's the actual source of that information. And I think it's very, very important. If you look at the, listing under, current rule 11 o one subsection three. All those others are are like preliminary or temporary hearings of one kind or another. This whereas this is a substantive, proceeding that's going to put someone's someone's liberty at risk. And so it's really something that it's it's not like the other things in this section, and it, as I say, it puts people at serious risk of unjustified detention.
[Rep. Martin LaLonde (Chair)]: Okay.
[Jack McCullough, Director, Mental Health Law Project, Vermont Legal Aid]: There's a whole section about involuntary medication proceedings. And I've got some real concerns. Obviously we have a proceeding for involuntary medications in, Title 18 and I recognize that the purpose of involuntary, medication cases in this bill is different because it relates to competency restoration not to psychiatric treatment. However, even at that there are things that I think we would do well to look at title 18, starting at, seventy six twenty four to talk about the factors that need to be, that the court should be considering. For one thing, I I wouldn't put these in the put these hearings in the criminal division, or at least if they are gonna be in the criminal division, I don't think they should be hearings that are open to the public because by necessity, the case involving involuntary medication brings in a whole lot of clinical diagnostic I'm
[Rep. Martin LaLonde (Chair)]: sorry to interrupt, Jack. Can you just route me, point me to where you are in the middle? Oh, PJ. Oh, okay. I'm sorry, thank you.
[Jack McCullough, Director, Mental Health Law Project, Vermont Legal Aid]: Thanks, I was just looking there while I was talking. Yeah.
[Rep. Martin LaLonde (Chair)]: Thank you so much.
[Jack McCullough, Director, Mental Health Law Project, Vermont Legal Aid]: Great. So we're set.
[Rep. Martin LaLonde (Chair)]: Yeah. So you think it should it could be in the criminal division, but it would just have to be a hearing that would be not in public.
[Jack McCullough, Director, Mental Health Law Project, Vermont Legal Aid]: Right. And then if you look at the involuntary medication provisions in title 18, there's there's a whole set of factors that, that the court is required to, consider as part of the part of the decision, and I'm I'm getting there as we as as we speak. But it includes things like what are the side effects that the person might have from the medications.
[Rep. Martin LaLonde (Chair)]: Can you point to the citation for that provision?
[Jack McCullough, Director, Mental Health Law Project, Vermont Legal Aid]: That's 18, section seventy six twenty seven. And it includes things like the person's religious conviction, so whether they contribute to the refusal to accept medication, the impact on the person's relationship with the family members, the likelihood and severity of possible adverse side effects, the risks and benefits of the proposed medication and its effect on the person's prognosis and the person's health and safety including any pregnancy, various alternative treatments which may or may not include medication. And so there's a bunch of stuff that could, even within the context of competency restoration, in my view should still be part of the court's consideration in these involuntary medication proceedings.
[Rep. Martin LaLonde (Chair)]: So is it primarily those requirements? I'm trying to see where the subdivision is. Oh, I see. Okay. It's under subsection C. Yes. But would you be talking about suggesting that the court look to all of 76.7 or is it really primarily focused on subsection C?
[Jack McCullough, Director, Mental Health Law Project, Vermont Legal Aid]: Well, there's a question about advanced directives and I'm not sure where you would wanna go with that. So I would say it is primarily subsection C, also subsections D and E because they're talking about the person's competency to make a decision concerning medication?
[Rep. Martin LaLonde (Chair)]: Well, but I guess here's a situation where they're not competent and the medication is supposed to restore their competency. Of course, this might be a different competency that they're looking at as far as competency to have the medication. It's just like
[Jack McCullough, Director, Mental Health Law Project, Vermont Legal Aid]: Exactly, exactly. There are so many different concepts for competency and capacity for different purposes, but you're right.
[Rep. Martin LaLonde (Chair)]: Okay, alright so even under E it's even if the person's incompetent to make the decision, it's just that there's a bit of a higher standard as far as the court having to make specific findings. Okay.
[Jack McCullough, Director, Mental Health Law Project, Vermont Legal Aid]: I'm not sure that this provision on page six subsection g there requires showing by clear and convincing evidence, which is what's required under title 18. And so I think I think those are my main points. I know during the discussion, there is a a bunch of discussion about the wording and the use of suffers from a mental illness versus has a mental illness. And I think that if you look at the definitions under title 18, section seventy one zero one, I think that changing it from suffers to has is something that we'd previously done in that section of the statute, and it might have been part of the respectful language legislation ten years ago or however long that was. And with regard to the concern that Matt Valerio raised about the language where it says whether the person has or doesn't have a condition that causes a potential danger, I think it's worth looking at the definitions in title 18, and they're all in section 7,101 because that gets at the right point, which is that it's a two prong definition. One, does the person have a mental illness? And then two, is the person a danger as a result of the mental illness? And I think that's really what you're trying to get get at. Right. Okay. And I think that's what I have for right now. I'm happy to answer any questions.
[Rep. Martin LaLonde (Chair)]: I think the timing is good because I think we need to break for now. There will be another version. And if you haven't testified infections at institutions, assume that you will be if you haven't already.
[Jack McCullough, Director, Mental Health Law Project, Vermont Legal Aid]: I've been there already, so yeah.
[Rep. Martin LaLonde (Chair)]: Okay. So, alright, so we are going to be back at, I have a 03:30 scheduled with Sophie and Chief Burke, and you can see the graph at 02:08, it's been posted. Is that right? It will be posted momentarily so you can take a look at it. But then it is significantly shorter. Alright, so I appreciate it. Thank you very much again, Jack.