Vermont Legislature SmartTranscripts:

[Eric Fitzpatrick (Office of Legislative Counsel)]: We're live. K.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Good morning.

[Senator Nader Hashim (Chair)]: It is February 26 in senate judiciary. We have Jack McCullough from Vermont Legal Aid in to talk about s one ninety three. And I was hoping my my initial request was to focus on the representation aspects of this bill, which at least if you're looking at 2.1, it's on page 11, lines 10 through 11. But also happy to hear your general thoughts because the bill has gone through some changes since it was first since you first came in to testify. So I'll just the floor is yours.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Great. Thank you. Good morning, mister chair and members of the the committee. I'm Jack McCullough. I'm a lawyer for not legal aid, and I am, the director of, our mental health law project. We represent people in in all the involuntary mental health proceedings in the state, including cases that will be affected by this bill, cases in which a defendant, criminal case, has been found either incompetent to stand trial or not guilty by reason of sanity. I previously testified in this committee on January 29. And without going through all my problems with the bill, I would say that I do not believe that the constitutional infirmities that I pointed out in my previous testimony have have been corrected or addressed. I understand the impetus behind this bill. I know that if a family member or loved one has been killed or victimized in any way, you want the most extreme dream punishment that can be devised for that person. That's why the fundamental principle of this bill is to lock people up and throw away the cable. But must keep in mind that in the eyes of the and our constitution, every person that would be subject to the the provisions of this bill is innocent. The presumption of innocent applies to innocence applies to everyone who has not been tried or has been found not guilty. It applies to all of us and protects all of us. I'd like to talk about the history just a little bit. I think we can push trace the push for this type of legislation back to when the city's

[Senator Robert Norris (Vice Chair)]: the state's attorney evaluated a number of cases in her office, a case

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: in which there's been had allegedly committed a serious crime, but found incompetent to stand trial. And so so she or plead guilty of those charges. And if you think this proves the necessity of the bill, you have exactly backwards. What it proves is given proper psychiatric treatment, defendants charged with serious crimes may eventually become competent to face those charges even under our current system. None of those defendants were sent to some special competency restoration facility or got some special competency restoration treatment. They just got the psychiatric treatment that people in our system who are committed to the custody of the Department of Mental Health get. In short, we do not need this bill to accomplish the purpose of protecting public safety and potentially having their defendants go to trial if they can be made competent to stand trial. I do have some specific points that I wanna raise. First, what are the competency restoration services bill talks about? Not defined anywhere in the bill. How is are those services different from the treatment that people get now? What is the evidence of these services when they're created will be effective or any more effective than the services that people get now? What is the evidence that we have the ability to do it, and where's the element evidence that it can only only be provided in some kind of

[Senator Robert Norris (Vice Chair)]: locked

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: facility? Where is this facility going to be? How much will it cost? And why is it better than what we have now? Why is the Department of Corrections the appropriate agency to provide these services? Is it because anyone thinks that the department of corrections has an outstanding record of providing psychiatric care? Throughout the bill, there are points where somebody, the court, the Department of Corrections, or maybe some clinician is supposed to make a determination that there's a likelihood that at some point in the future, the defendant will be able to be restored to competency. How are they supposed to make this determination, and what is the evidence that it's even possible to do that, to make that determination? Denial due process. Whenever the government is depriving someone of their liberty, the government has to show that it's justified. This bill unconstitutionally shifts the burden from government to justify the detention to the defendant who at this stage is innocent that they are not a danger. The bill explicitly exempts these court proceedings at which a person's liberty is at risk from the rules of evidence that protect everyone in every kind of court proceeding, civil and criminal, across the state. If you look at section six of the bill, there's a list of types of proceedings that are already exempt from the from the rules of evidence. And you'll see that the and on two point on 2.1, it's page 12. And you'll see that most of the all of these proceedings that are already exempt from the rules of evidence are things like inquests, expedition requests, things like that where there is not a permanent deprivation of liberty, but there would there will, down the line, be some kind of trial at which guilt or innocence will be determined. Or cases like sentencing or probation where guilt has already been established. We should not exempt a serious deprivation of learning like this from the application of the rules of evidence. The criminal division is not the right place for these cases to be held. By necessity, these cases are going to be perceived based on evidence of based on the states putting forth the confidential psychiatric and other medical evidence. It should not be doing this in hearings that are open to the public the way criminal condition cases are. The present present title 18 system protects the proposed patient from improper disclosure of confidential medical information. And the same thing should be done in these cases if the evidence goes through. Negative input, I understand the victims and their families have feelings about what should happen to the defendant, but they do not have the knowledge or expertise that's necessary to provide useful evidence about the questions that are going to be decided by the court. They don't have any basis to know that the court advise the court on whether the person has a mental illness, whether the person is going to be in danger in the future. It's really an appeal to emotion to provide for all for the the victims, and it's it's it's going to be distracting and distorting if if that's allowed. There are a couple of things that I like about this bill. Section two, dismissal of misdemeanor charges. I think this is a really, really good thing. Too many resources in our practice, too many resources are spent on minor charges. I could tell you sometime about the case of our client who was charged with stealing a bag of chips. And it was a fight to get the state's attorney to dismiss that charge. And we have many, many charges where the person's been valued and competent to stand trial, has has agreed to psychiatric treatment, and the the cases clogged up the courts, hang hang over the person's head for many years on what's called inactive status. There's no no point to that. It doesn't it doesn't advance public safety or or anything else to to have that system. There is a provision in the in the bill to allow the termination that that in some cases, even misdemeanor should be kept pending. And I think that's that's the way it should be with the presumption that the cases will be dismissed. Finally, with regard to the

[Senator Nader Hashim (Chair)]: Thank you. I think, at least to me, what the biggest point is that I wanted to revisit was the burden shifting of having a person versus the state have the burden of proof. I I know that in civil committee hearings, the state has the burden. And I I was reading through some other Vermont Supreme Court cases last night and the day before, and I do think that it makes sense to have that burden remain with the state. And so what I'll be proposing either later on today or tomorrow when we're when we're going to markup is putting that burden on the state with the clear and convincing threshold if they are going to if somebody is going to continue being committed. I I think though the other piece that I wanted to address was the rules of evidence piece. One proposal that I did make earlier on was that this would apply to people who are being held without bail. And I think that when it's an incredibly narrow scope that would only apply, at least at the moment, to about six people who are being held without bail. And the state has prevailed and showing that the weight of the evidence is great, they need to be held without bail. Fail. I think having that piece does get to at least part of your concern regarding the due process aspect, the rules of evidence aspects of whether or not somebody

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: can be

[Senator Nader Hashim (Chair)]: detained, essentially. So I don't know if you have additional thoughts about either of those or if you have any additional thoughts on that?

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Well, putting it that way, I I can say that in the last few years, it seems that we've seen more cases in which someone who's who's being held in in corrections generally, They may not be held without bail. They might be held on bail if they haven't been able to meet their own conditions. We've seen more and more of those cases where the person winds up being brought to a hospital and being subject to title 18 commitment because mostly because there's an allegation that the person has done something while they're in corrections that shows that they're in danger even in a very restrictive setting. You know, people who got on hunger strike, people who've been assaulted, and they haven't really had a way to granted, there's a difference whether you're going to be in hospital or being in jail. And a number of my clients who go in the position I've described realize that they'd probably rather be in the hospital than in jail. And so they're not necessarily in a rush to get their hearing and get back to jail. Most of those cases wind up people wind whether that resolution might be. And some of them could be homicider or serious charges. Is that a vote?

[Senator Tanya Vyhovsky (Member)]: I imagine your legal aid has represented people who are receiving mental health treatment in a jail and people who are receiving mental health treatment in a hospital. Can you speak to the difference in treatment conditions? Yeah.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: I only have a limited amount of knowledge of what's going on in corrections. But I think it really is very limited. Some such that just by taking the state to court for it.

[Senator Tanya Vyhovsky (Member)]: Yeah. I appreciate that. I continue to have concerns with the facility being located in a jail for constitutional reasons, but also just for treatment best practice reasons. And it's not about being a locked facility. It's about the environment.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Is the thinking that this would be a separate section within the jail? Or is

[Senator Tanya Vyhovsky (Member)]: it Oh, okay. Yes. That is what is being proposed.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Question, how many people would be able to recognize that they weren't just in jail?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Women, they are in jail. Yeah. Exactly.

[Senator Nader Hashim (Chair)]: Think the other piece, at least from what I understood from the testimony, was I I I did ask for witnesses from WellPath to be connected with our committee assessment. Henry was out today. As of yesterday, I don't believe we had heard anything from DOC connecting us with WellPath. But on that same token, there is a part of that that falls into Senate health and welfare as well and Senate institutions. Both committees are aware that I would like them to look at this bill and, you know, hear whatever witnesses they need to hear from and, you know, form any conclusions that they need to form. From what I could understand from DOC, I'm having be corrected if I'm wrong, is that WellPath has competency restoration services that aren't being provided to people at the moment, but could be provided to people with the directive has been put into this bill, which is that DOC or the Agency of Human Services shall provide rehabilitation or recovery. I can't remember the exact wording. The initial version of the bill said that DOC may provide these services. One of the changes we made, I think,

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: a few weeks ago was to

[Senator Nader Hashim (Chair)]: turn that may into a shell. And I think that's an important distinction because if my understanding is if somebody is going to be committed, the focus has to be on recovery and competency restoration, not just detention. And so pending whenever we and the other committees hear from WellPath yeah, that's just one point that I I want to put out there as

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: well. Yeah, well, know Alison Richards, who's the regional medical director or something for WellPath, was medical director at BUCH. I like her very much, and she's very concerned with the well-being of her clients. And that's why she initiates. Sometimes people can send corrections to to the hospital because she thinks that that's very thing that they so interesting to hear what she has to say. I I would be very interested in knowing if there's good peer reviewed evidence that competency restoration works and that it works any So

[Senator Nader Hashim (Chair)]: I guess one question that I have, which may be for our council is, what the bill has written, does it completely prohibit somebody from going to a hospital to get their treatment and then returning back to the forensic facility slash correctional facility. I don't know that it necessarily does or doesn't, but I think that's a point of clarification that I'll ask. Yeah.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: I don't think it does. I thought I saw there's still language

[Senator Tanya Vyhovsky (Member)]: You focused most of your testimony on the competency restoration aspect, but there's also an aspect of people who were found not guilty by reason of intimidation in this jail. Do you have thoughts on that aspect of the bill?

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Yeah. I think that, again, I know that the insanity defense is not popular, and lots of people don't like it. But still, once the person has been found not guilty by reason of insanity, they can't be held treatment. They're approved for punishment, and their their detention has to be justified. And, you know, I know clients. I've represented people who have been found either incompetent or not guilty by reason of insanity and have been after killing somebody. And I would have and they're just outliving among us now because they've been they've shown that they're not in danger. And if they're if someone is not in danger, one, it's obviously very expensive

[Senator Tanya Vyhovsky (Member)]: And then we also heard testimony yesterday. So the language in the bill used to be fairly offensive regarding mental health conditions. But in order to, I think, be less offensive, it has shifted to language around a qualifying condition. Do you have any input on that language shift? The concern we heard yesterday is that it's overly broad.

[Senator Nader Hashim (Chair)]: One thing that I just want to make sure is distinguished here is that for the NGRIs, would have to be a substantial risk of bodily injury in order to permit the continued commitment of somebody wouldn't just be an NGRI and no other qualifying factor. I mean, understanding is there's 40 other states that have something similar with a number of those states having the requirement that if there are less restrictive environments available, then they could be transferred there. That's another idea. But we just wanted to make it clear that for the NGRI piece, wouldn't just be not guilty by reason of insanity. Then you're in the forensic facility forever. There's also the substantial risk of bodily injury. So that's just for context.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Do you have any further testimony? I think I'm good. Thank you. Okay. I'll just make sure

[Senator Nader Hashim (Chair)]: I guess one question that I do want to ask is regarding the representation piece that felt or that Vermont Legal Aid would be able to undertake this as these are the cases that you generally do work on?

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Yeah. This is right in in the area of the case that we're doing now. If it's a small number of cases, which, you know, hypothetically, we're talking about six cases in here. But, you know, raised the question of six cases this year. Then if there's another six question case next year, are they still is that on top of the people who who were used this this year? I know that the state thinks, well, those six people will take care of them in one year, and then they'll move on to the next part of the criminal process. I'm, of course, skeptical of that. But unless there's a lot more cases, we would I assume we can do this the company that's within our current resources. Thank you.

[Senator Nader Hashim (Chair)]: If you happen to have the contact information for Allison Richards, would you mind sending that to me? Oh, sure. It's our committee assistant, Emery. Daphne's in here subbing in for Emery too. So Sure. Yeah. That would be great.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: I might just have her personal cell phone, but I can get to that.

[Senator Nader Hashim (Chair)]: Okay. If she has an email address that you might be able to send as well, that would be great.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Okay. Yeah. I'll check.

[Senator Nader Hashim (Chair)]: Great. Any further questions for Jack?

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: I don't. Okay. Okay. Great. Thanks.

[Senator Nader Hashim (Chair)]: Thank you very much. If anything comes up,

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: I'm happy to be here. Appreciate it. Alright.

[Senator Nader Hashim (Chair)]: Alright. So, Eric, are you with us on the Zoom?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yep. Yes. I'm here. Sorry. I had a little, technical. Can you hear me okay?

[Senator Nader Hashim (Chair)]: Yep. We can we can hear you. Right. So we're a little bit ahead of schedule. And I know we have you scheduled to do a walk through of some of the changes here in draft 3.1. And then we're having Karen come in after you. I'm wondering if you wanted to just do that walk through now.

[Eric Fitzpatrick (Office of Legislative Counsel)]: It's totally up to you. I I certainly could. Yeah.

[Senator Nader Hashim (Chair)]: Okay. Sounds yeah. I mean, if you're don't have anything else going on, then, yeah, happy to do the

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. I just finished I just finished the my testimony in house go up, so so I'm free for a little while.

[Senator Nader Hashim (Chair)]: Great. Great. So, yeah, floor is yours.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Alright. Just gonna pull up the document here so that I guess I didn't think of it till just now too. Do you want me to does everybody have it? Would you prefer it if I shared my screen or what's what's the preference?

[Senator Nader Hashim (Chair)]: Share your screen just as we're going along with it. That could be helpful. Paper copies in front of us.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Right. Well, let me let me give that a try. Hang on one second. Alright. So I assume my screen is not being shared quite yet. Right? Right. So let me so I just pulled the document up. So now I'm gonna try and share, which I think I should be able to do. Alright. Is that visible?

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Yes.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Alright, great. Okay, so Eric Fitzpatrick with the Office of Legislative Counsel, as the chair indicated, have a have a version number three of the judiciary committees, possible committee amendment S 193 activating to establishing a forensic facility for certain criminal justice involved persons. As with the previous draft changes are highlighted, but in addition, there's some highlighted pieces that continue to just sort of indicate some of the decision points that the committee has reserved for future discussion. So with that said, we'll jump right into section one, which unfortunately, I didn't hear all of Jack's testimony this morning, but I at least got a sense that you were speaking about both the competency restoration and the not guilty by reason of insanity. Just say that too, so that I think the committee is still aware that we have these two tracks of criminal defendants who could go into the forensic facility system and section one deals with the track of competency. Sorry, actually a person who's been found incompetent to stand trial. Subsection A there was the criteria that would qualify a person for being transferred to the forensic facility and there were three in the although I think actually the previous version you did have you had four you had the first part 2A line 13 was in the previous draft that you had looked at and this was adding the concept that in order for a person to be transferred to the forensic facility after being found incompetent, there are a couple of other criteria that exist. There's obviously the life sentence subdivision one, so it's a narrow group of offenses that would qualify for a person for being transferred, as well as subdivision three, the existing one that hasn't changed that the person is not already receiving hospitalization treatment either through the civil or criminal process. But the new subdivision 2B, you'll see that 2A you looked at last time, that's also only going to apply if a person is being held without bail. Presumably that's going to be most of these cases because as we looked at in the line above subdivision one, these only applies to life sentences. So if it's a person who's been charged with the offense that can be punishable by life, which itself is a very narrow class of cases, it actually reminds me and the committee may not have noticed, I think Vermont Crime Research Group had, I asked them and they put together a list of all the Vermont offenses that do have a lifetime max and I sent that to Emory for posting. That should be on the committee page if you ever curious, well, which offenses does this actually apply to? But so you've got these lifetime offenses and subdivision 2A and the person that has been held without bail. Again, presumably that's going to cover most of these situations because they're such serious offenses in the first place. But subdivision B, the idea here is, well, what if in this probably very small, number of cases, what if the person isn't being held without bail? Well, in that case, the person, would not automatically go to the forensic facility. It would only be if the person's release would create a substantial risk of bodily injury to another person. That's again, tracking the language about whether or not a person who's not guilty by reason of insanity can also be committed to the facility uses that same language. So it just sort of imports it here so that it can cover a case where a person's not held without bail, but yet it's still potentially causing a risk of substantial harm. If you couldn't meet that threshold, in other words, if you're not being held without bail and your release wouldn't create that risk, then you would not be sent to the forensic facility. So that's the idea there.

[Senator Nader Hashim (Chair)]: Eric, one question I have.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: I'm not going be able

[Senator Nader Hashim (Chair)]: to read through the full statute right now. Goes back to something that was raised earlier regarding treatment at a hospital. So I'm looking at 4,822 or 7619. So if somebody who's charged with a life offense or let me rephrase. Is it possible for somebody to get an order of hospitalization even if they've been charged with a life offense and they're being held without bail?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think so. But say that one more time just so I know

[Senator Nader Hashim (Chair)]: So let's say somebody is not competent. They've been charged with a life offense.

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

[Senator Nader Hashim (Chair)]: They're being held without bail.

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

[Senator Nader Hashim (Chair)]: Is it possible for them to get an order of hospitalization through those two statutes that are cited on line 18?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes, it would probably be the latter though. Would be 4,822 because that's the one that 7,619 is just the civil commitment process. It's unrelated to criminal proceedings. Only, I guess I should rephrase that. It is unrelated, although parts of it also will apply in the latter citation, the 4,822 context. Again, it's almost like this one. If you think of it, it's two different tracks toward how do you get to being hospitalized involuntarily in Vermont currently, that's current law. In current law, you can be hospitalized for mental health treatment involuntarily, two different tracks. And those two tracks are both cited on line 18. One is civil. That first one, seven thousand six hundred nineteen doesn't require any criminal proceeding at all. But the second one, four thousand eight hundred twenty two, that only kicks in when if someone under current law is found either not guilty by reason of insanity or incompetent to stand trial. In that situation currently, and again, this bill you're looking at now, the idea here is to provide a different track for those people. But under current law, people, there's a hearing that has to take place after that finding of NGRI or incompetency and the court has to decide at that hearing whether the person is a danger to themselves or others as a result of a mental illness. And if the answer to that question is yes, then they get civilly committed. So to the civil commitment process to the Department of Mental Health for treatment. That's the existing status of the law. So yes, to answer your question in a nutshell, that sequence of events that you described Senator Hashim could happen under current law, but it would be subject to this, it would be in the under the umbrella of this civil commitment process that exists now, not a forensic facility.

[Senator Nader Hashim (Chair)]: So that clears things up mostly. So just to confirm, it's possible that depending on whatever the facts and circumstances are that are presented to the court that somebody could go to the hospital through an order of hospitalization rather than being at the forensic facility even if they meet all the other qualifiers?

[Eric Fitzpatrick (Office of Legislative Counsel)]: You mean the qualifiers we're looking at here in the bill?

[Senator Nader Hashim (Chair)]: That are above line 18.

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

[Senator Nader Hashim (Chair)]: And I guess line 19 too, which is uncomfortable.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes, other than than subdivision three itself. That sort of excludes those people who are currently getting treatment. Yes, but you know, so the idea is to have this other other type of treatment, this forensic facility type of treatment for criminal justice involved people for in certain specific offenses. But yes, even without this bill, yes, though people on those who would fall under those other criteria listed in the bill could possibly get committed to and treated through the Department of Mental Health under current law if the person is found a danger to themselves or others as a result of a mental illness. Thank you. Yep. That makes sense? That kind of All right. So we can move on a bit. Can if everyone's ready to move forward to the next change. Oh, actually this isn't a person's change, suppose. Well, actually this is it's sort of a note here. You'll see that what's highlighted on the page two. This has to do with the issue of what happens if a person's competency can't be restored. You know, the certain subset of the population of folks who would be at the facility. I think the committee was discussing the issue of what if some of the people in that population competency restoration is not possible. And this was I think discussed by a couple of the witnesses you had yesterday. And when this idea is proposed by DMH, although I reworked it a little bit to kind of track the process in the NGRI context, but the language you have in front of you now anyway, a nutshell, basically says if, because remember we talked about this yesterday, this is the one year versus six months thing, that the language here provides that if there's an evaluation that concludes that the person's competency can't be restored, then they are committed for treatment at the facility and it continues to go as though they were being treated initially except that they have the opportunity to file for in the court for a petition to reevaluate their competency, but that is, there's a one year cap on the timing of that, that I just switched to page three, three lines seven to nine. So if the person files a petition to say, hey, I've been found to be a person whose competency can't be restored, they can file again to reevaluate, but it's an annual thing. You see that line seven through nine provides that. And if the court in the first instance, it's sort of above that line four, if the court finds by clear and convincing evidence, the person can't be restored to competent can't be restored to competency, then they would deny the petition order the person continued committed to the forensic facility for continued treatment. And then the person can file again on an annual basis after that. But that's, that's, you know, I highlighted it because I had the committee was still discussing the issue of what really should be done with respect to this universe of people who, who for whom competency can't be restored. And there's no, it's not a requirement that you even necessarily include anything about that universe in the bill. If you don't choose to then that then the process that you look at under under B would just apply to everybody, the existing you see line 20 page one over to line five page two. That process is that upon admission to the forensic facility, the person is evaluated with competency to stand trial not less than the shorebird either every six months, or if the clinical director thinks the person is likely competent. Now you could just have that apply to everybody. You don't necessarily even need to carve out the universe of folks for whom competency can't be restored. It just be at this every six months process would apply to everybody who's in the facility. So it's not could go either way.

[Senator Nader Hashim (Chair)]: That that does make sense. Also, so you know, your screen stopped sharing. I don't know if that was on accident.

[Eric Fitzpatrick (Office of Legislative Counsel)]: It's not sharing right now. Let me try and restart that.

[Senator Nader Hashim (Chair)]: I'll ask my question once you get it back up.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Okay. Thanks. Can you hear me okay, though? Alright. Well, I just I have a little message that says the screen sharing ended unexpectedly. If you need to reboot this device if you cannot restart broadcasting alright. Let me try and see if I can do that again. Are we back on?

[Senator Nader Hashim (Chair)]: Yes. Thank you.

[Eric Fitzpatrick (Office of Legislative Counsel)]: All good. Alright. Sure.

[Senator Nader Hashim (Chair)]: So on the point that you were describing regarding whether or not somebody's competency can be restored

[Eric Fitzpatrick (Office of Legislative Counsel)]: Uh-huh.

[Senator Nader Hashim (Chair)]: I guess there's there's a couple of aspects here that I wanna take into consideration and rephrase. I think that and this is going on to page three starting on line four. So if the court finds by clear and convincing evidence that the person cannot be restored to competency, I think there should be a requirement that the court shall consider less restrictive means. But I also want to create a distinction to ensure that somebody who is just declining to participate in competency evaluations is not being considered is not considered a finding of no competency, if that makes sense.

[Eric Fitzpatrick (Office of Legislative Counsel)]: So you want to have it so that a person who's kind of refusing to participate? Yes. Doesn't necessarily mean I see what you mean, I think.

[Senator Nader Hashim (Chair)]: And I don't know if that's already covered in the way that the language is written earlier, but so I guess it's also part of a question as to whether or not that's covered. But ultimately, if somebody is found not competent and they are not going to be restored to competency and they're no longer dangerous, then I think the court shall consider or the court must consider committing them in less restrictive means.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Now would that be though? I'm wondering if that's did you wanna add because because that what we were just talking about, as we say, was just the restoration piece. But also what you're describing, I mean, could conceivably apply to the competency restoration services in general, like under subsection D there. The idea that, you know, you want the court to consider the least restrictive means generally and generally that a person's a person declining to participate in competency restoration services doesn't mean that the person's incompetent. Seems like I'm just as you say it out loud, it seems like it could apply generally. Or did you or are you thinking

[Senator Nader Hashim (Chair)]: I'm I'm just thinking. I'm trying to make sure that it's not just that we're not being redundant, but also trying to make sure that if somebody is not competent and they're not going to be restored to competency, that the court shall consider committing them to less restrictive means.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Oh, I see what you mean. Okay. Yep. Yep. Yeah. In that context. Now, what about the same thing for the decline to participate?

[Senator Nader Hashim (Chair)]: Wait. Say that one more time.

[Eric Fitzpatrick (Office of Legislative Counsel)]: For the declining to participate in

[Senator Nader Hashim (Chair)]: No. I I don't want that to apply. If if somebody is declining to participate, I don't think that there should be the consideration of the less restrictive means.

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

[Senator Nader Hashim (Chair)]: I'm thinking of the testimony that we heard yesterday from Susan regarding somebody who has a traumatic brain injury, they're wheelchair bound, they can't talk. Do they need to be in the forensic facility or perhaps Berlin Psychiatric Hospital? So like those types of circumstances, I would like the court to consider less restrictive means for committing somebody in that situation. That's what I'm trying to

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: get at.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Right. So maybe declining or unable to participate?

[Senator Nader Hashim (Chair)]: Well, think those are two different now. I think I might be muddying the waters here. I think declining to participate versus unable to participate would be two different things. Somebody could be declining to participate just for the purposes of either delay or because they aren't competent, and so they don't know how to interact with the process. But, well, yeah, I'm not sure. I think I might just be muddying this up a little bit with my questions here. So I'm going to pause because I know Senator Bahosky has a question. And then maybe we can revisit

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

[Senator Tanya Vyhovsky (Member)]: So my question is related because I'm wondering if the language that was added about if the person's competency can't be restored looking at something other because the person you're describing well, I don't know the person. But I would imagine if someone has to utilize a wheelchair and can't move around, they're probably not a risk to the public. So I feel like if it's been deemed that competency can't be restored, they're not a risk to the public, then does that sort of solve the problem of them being in the forensic facility?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Do you know what Yeah.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: I know what you mean. Okay.

[Senator Robert Norris (Vice Chair)]: Well, were they in were they in a wheelchair when they commit the alleged crime?

[Senator Tanya Vyhovsky (Member)]: That doesn't matter for competency not being able to be restored. That would matter if they were seeking not guilty by reason of insanity. And it would this like, is where it's also tricky. And there's the danger to the public piece.

[Senator Nader Hashim (Chair)]: Gotta get into the details. Alright. So maybe we'll take a step back, and we can start from the top, Eric. Let's what do you have any responses to what we're talking about here, Or any thoughts?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, think one initial comment is that you might want to think as a policy matter about leave the language and the details aside for a second. This competency restoration language was not in the bill as introduced. So, and as I mentioned, it's not it's not necessary that you have it here. You may want to or you could just have the general procedure that I've just put up on the screen again from lines 20 to 23 apply. If you do want to have something in this bill about competency restoration and by the way, I shouldn't say competency restoration wasn't in the bill that I misspoke. Yes, restoration services have to be provided. They are provided at the forensic facility as the committee has decided for as long as the person's there or until they're either until they become competent or the underlying criminal charges are reached disposition in that case. So yes, competency restoration is a big part of this. What I meant to say was that the universe of people for whom competency cannot be restored, that part was not specifically addressed in the bill. So it was added at the request of DMH. But it's a policy choice for you as to whether you just have this procedure exist. This is the one that is for everybody who's at the proceeding on the basis of competency. They get evaluated every six months or the or if the clinical director says, think they're likely competent to stand trial now, then it would be sooner than six months, then they're evaluated every six months. And if the court determines obviously that they're competent, now they're going to be referred to the state's attorney. Otherwise, the as we have the language in here that the person gets competency services while they're there, and they'll be provided until and over on page four until the person is either restored or until there's a final disposition. So that's the structure. If you want to this subset of people for whom competency cannot be restored, if you want to carve out a different process for them, then I think you need to think about first of all, as a policy, what do you want that to look at look like?

[Senator Nader Hashim (Chair)]: So I think there should be a policy for that. Because if somebody can't be restored so if we were to take that out of the bill and somebody's competence can't be restored, I don't want there to be a situation where they're getting competency restoration services anyways, even though it may not make sense for them to be getting competency restoration services because they can't have their competency restored. So in my opinion, I think there should be some language around that. I think so I guess taking another step back, with what we have written here, if somebody can't have their competency restored and they're no longer a danger to the public, what would happen to that person?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Oh, I'm going to remind, danger to the public is not an issue in the competency. That's an issue in the not guilty by reason of insanity. This is, you're in the facility, is solely based on whether or not you're competent to stand trial or not. Now, of course, danger to the public is going to be relevant to the fact that the person only has to be a life, a lifetime max offense for them to even be here in the first place. But it's not one of the initial criteria. Remember, the initial criteria is life sentence, not currently being hospitalized, not competent to stand trial. And then there's the whether you're held without bail question, but we've proposed to add, well, the person who is not held without bail, but could still be a risk of bodily injury, that person could end up there too. But there's many people that would be here are just coming in under life offense, held without bail.

[Senator Nader Hashim (Chair)]: So I think for a person who's held without bail under seven fifty five-fifty three, that dangerousness is contemplated in those requirements. Right. I see the second sentence that the person's release would create a substantial risk of bodily injury to another person. And so then with that in mind, what I'm reading is that if somebody is not, that their competency can't be restored and they're not creating a substantial risk of bodily injury to another person, that it is possible for them to be released.

[Eric Fitzpatrick (Office of Legislative Counsel)]: You mean you mean currently or with or with this new language?

[Senator Nader Hashim (Chair)]: With the language.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think that so let's say the person if you mean if the court finds that they cannot be restored.

[Senator Nader Hashim (Chair)]: That they cannot be restored. And they're not a substantial, they're not losing a substantial risk of injury

[Senator Robert Norris (Vice Chair)]: to another person. I

[Eric Fitzpatrick (Office of Legislative Counsel)]: think that the way the language is written now, a finding of not being able to be restored to competency means the person's commitment continues regardless of the danger. Now that may not be what you want. Say for example, subdivision either the person finds if the court finds by clearing convince given that the person cannot be restored to competency, petitions denied persons committed to the facility for continued treatment. And if the court finds the opposite, that they may be found, likely to likely competent, in other words, they have been restored, then they know if the court notifies the state's attorney in the criminal case. So the way it's set up now, and this was conceptually in the DMH language that the person remains, regardless of whether they're likely to be restored or not.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Okay.

[Senator Nader Hashim (Chair)]: That makes sense.

[Eric Fitzpatrick (Office of Legislative Counsel)]: But you may not want that. It sounds like what you maybe said it sounds like you wanted some guardrails on if someone is found to be a person whose competency can't be restored, then it sounded like you wanted to wanted to add, like, least restrictive means. Right?

[Senator Nader Hashim (Chair)]: Yes.

[Eric Fitzpatrick (Office of Legislative Counsel)]: And well, that was the one I caught at least as far as that. I'm not you also mentioned the decline to participate doesn't mean incompetency. And I'm not sure if that is something you wanted to fold in here. Wasn't quite following that piece. But I see what the least restrictive means maybe in other words, the person can't be restored. But I see what you mean that that you don't necessarily want that person to keep getting restoration services if there's already been a finding that competency can't be restored. So you want them treated in with the the least restrictive means. Was that the idea?

[Senator Nader Hashim (Chair)]: Court shall consider least restrictive means. I mean, I think

[Eric Fitzpatrick (Office of Legislative Counsel)]: there are various

[Senator Nader Hashim (Chair)]: factors depending on what the person's conditions are. And just there's a lot of variable factors. So I just want it to be a factor that the court would consider.

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

[Senator Nader Hashim (Chair)]: And Senator Vyhovsky

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: has a question.

[Senator Tanya Vyhovsky (Member)]: Yeah. I'm wondering so the language we were just looking at it around how well, no, it's right there. At the request of

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: a

[Senator Tanya Vyhovsky (Member)]: party, the court may order that a second or subsequent evaluation, including an opinion on whether the person's company cannot can be restored.

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

[Senator Tanya Vyhovsky (Member)]: So there's a required review of competency. And I'm wondering if that same required review of competency should also require there is a review of whether the person is likely to be able to be restored to competency rather than having this process of all you need to ask. I mean, it may be both are fine. But if we're requiring a regular review of, is this person competent, I think we should also require at that time that it be reviewed if they will ever be.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah, you certainly could just I'm just backing up a little bit because there is that under generally speaking, there's this review every six months. So you certainly could do it that way instead. Just say that's cause they have this review every six months anyway, you can just say the review shall include, you know, an opinion on whether competency can be restored.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Alright, sir. Now I

[Senator Robert Norris (Vice Chair)]: guess I'm confused where there was rule that a person's compass cannot be restored, so is no need to keep them in a forensic facility to offer those medical services to them. But six months later, you're saying that we wanna check to see if their compass has been or is been restored. But yet, during that whole process, if we're working toward that individual, why would we not still offer those medical?

[Senator Nader Hashim (Chair)]: I think it's if if somebody can't be restored, restored, it's it's not not that that they they don't get medical services for whatever their conditions may be, but rather the specific competency restoration piece of do you understand what a trial is? Do you know what evidence is? Do you know how to talk to your attorney? It's a very specific set of services to make sure that somebody can communicate with their attorney and understand the proceedings that are happening. But if somebody has a health issue, they would still be getting the health services that they need or whatever that issue might be, which I think would be helpful testimony if we can get WellPath in or get them to health and welfare. Sorry, were you asking that question to me

[Senator Robert Norris (Vice Chair)]: or Eric? Attorney is going. Eric,

[Senator Nader Hashim (Chair)]: did I answer that?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah, I think I think so and as you kind of were getting at there's there's a a medical aspect of the answer that I I certainly am not qualified to answer it but I think maybe Karen or well path or somebody could and that's the idea that as you often hear mentioned that competency is this fluid thing. And that, you know, a person can, even if there was an opinion, the person's competency cannot likely be restored. That doesn't mean it's impossible. That, although even that I'll qualify that even more because as you heard yesterday from a couple of witnesses that there may be certain conditions for which it really isn't gonna happen. For example, there was discussion about IQ and traumatic brain injury and that sort of things. Maybe there are, there probably are again, it's getting into a medical perspective that I don't really have the expertise in. But Karen and others might that there may be situations where because competency is fluid that it can come and go. That would sort of provide a rationale for why at least in that universe of people services would continue to be provided, even though at a given moment, it might look like restoration might not happen.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Alright. That makes sense then. So okay.

[Senator Nader Hashim (Chair)]: So one more question on this area for now. And then I think maybe we should move on and try to tackle some of the other points just so we're not muddying this up too much. Sarah Rose?

[Senator Tanya Vyhovsky (Member)]: Yeah, I do have concerns if in some of the instances like we heard about yesterday, if we have someone that is not going to be returned to competency and is not a danger to the public about the concept that they may be still held indefinitely. And so I think there should be something here that sort of allows for, in the instance, like was described yesterday, someone who, in the commission of their crime, suffered such a catastrophic injury that there's need for public safety for that person. They will not be found competent. And they are not a risk to public safety. I don't think I think we need language that allows for them to not be held.

[Senator Nader Hashim (Chair)]: Think that is covered with the requirement that's on page one, lines 15 to 16, that person's release would create a substantial risk of bodily injury to another person. And if somebody, like you said, is wheelchair bound, they can't talk, or really move much, and there's the finding that they're not a risk, substantial risk of bodily injury to another person, then I do think that that would cover what you're describing.

[Senator Tanya Vyhovsky (Member)]: I appreciate that and initially thought that that did. But then with some of the back and forth we just had, I'm now no longer convinced that it does because we didn't hear that that person could be held

[Senator Nader Hashim (Chair)]: Right. Indefinitely. To competency restoration rather than somebody who is not restorable. Yes. Right? Okay. It's making more

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: sense now. Okay. Alright. Let's put a

[Senator Nader Hashim (Chair)]: big star next to that. Okay. Make ourselves more confused. Well, actually, I feel like

[Eric Fitzpatrick (Office of Legislative Counsel)]: think that's a that's a good question, though, for because as you're kind of getting at what you're looking at on page one here, the criteria for how you get there, how you get to the facility. But if then it's determined after you're in the facility, it's determined that you can't be restored and you may not be causing a danger anymore, there's the star. It's funny as you said that I wrote a star right here on my notebook because that's that is a question. What happens then? And that would be a good question for the DMH or for any other witnesses as to what the policy ought to be at that juncture.

[Senator Nader Hashim (Chair)]: Okay. So we can revisit that probably in our conversation later this morning or when we get back. Let's let's move on to the next piece, please.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Okay. So now we're getting out of the competency restoration piece. And in fact, I think we're moving right to Yeah, this is all just procedure for what happens while the person's in the facility and the finding that we just discussed and how that they get services all the time that they're there. And until they're either restored or until there's a final disposition disposition of the of the charges, however, on page four. Now, so this is a separate issue that we're looking at new highlighted language on page four, line three is where it starts. And this has to do with the issue of, again, turning back to the fluidity of competency idea. And this is specific to a fact pattern where a person has been determined competent, right? So competency has been restored. And you in that situation, it's contemplated that the person could be released to the community. But what if and I you'll hear from witnesses, I think on this that it's not uncommon for because competency being fluid, that although they were restored and were competent, then later on, it looks like they're becoming incompetent again, what happens in that situation. And the idea is to have an expedited process for to return the person to the facility, It looks like they've been released because there was a competency finding, but then it looks like the person may be returning to incompetency again. And this adds that sort of a procedure to address that situation. So you see what happens is, it's sort of based there is there is a similar procedure that's in the bill for the NGRI people. So where there can be an immediate return to the facility under certain circumstances, and this kind of creates a parallel process for the incompetency situation. And the way it works is, and you see line three and four, it says at the outset, commissioner shall immediately return return a person to the facility if so you got a few criteria there. First one previously was restored to competence in the facility, then subdivision B commissioner has reason to believe the person is again incompetent and C the person's continued release would create a substantial risk of body injury to another person. So again, it's not everybody who might be drifting toward incompetency after having had their competence restored. It's only those folks who whose release would create continue to create this or would create a substantial risk of bodily injury. So if that's the case, the person can be immediately returned to the facility, but there has to be a court proceeding right afterwards. So you see then the commissioner has to notify the court where the person was committed. And then the court has to hold a hearing on whether and then the state's attorney has the burden that's line thirteen and fourteen of establishing by preponderance that the person is not competent. So again, this showing even though they were restored to competency while they were in the facility that now the they're not the state's attorney would have to show that. And if the court finds that the burden has been met and the person is not competent, then they order the person, this is line 16 readmitted for competency restoration treatment pursuant to this section generally. On the other hand, if the person founds if the court finds that the person is competent, in other words, had this hearing, the court said, well, it turns out it looks like the person is competent, then they just ordered the person restored to the same status the person had when they were returned to the facility.

[Senator Nader Hashim (Chair)]: Senator Norris has a question.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Yeah. Eric, I got a couple

[Senator Robert Norris (Vice Chair)]: of questions here. One is just, I'm assuming on line 11, that's just, the commission shall notify the court where the where.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Oh, yes. Thank you. Yep. That's a typo.

[Senator Robert Norris (Vice Chair)]: And on line 14, my question is the burden established by a preponderance of the evidence. Is it I thought that we were leaning more toward, the burden being clear and convincing, yet I see this in a couple different places on page four and on page nine where it uses the term preponderance of preponderance of evidence. Was that supposed to be there? Yes.

[Eric Fitzpatrick (Office of Legislative Counsel)]: It it's just a it's a different it's a different stage and type of the proceeding that was in the draft as it came over originally in terms of the NGRI folks and you think about it, this is what the burden is on the state at this stage because the person has been released already. It's not like they've been sent to the facility in the first instance as they were after the initial finding of either not guilty of our reason of insanity or incompetence when they get sent to the facility in that first instance, then the way the bill is written, the person themselves has this clear and convincing burden to show they shouldn't be there. But in this situation, the person has already been at the facility, they've already been treated, they've already been restored, and then they're being brought back to the facility for readmission. And in that case, the language had it that the burden is on the state in that situation to show that the person should be brought back to the facility rather than the person having to show that they shouldn't be there the way it is generally. And the preponderance standard actually is, in that case, it's a lower threshold for the state to show as opposed to clear and convincing. But the burden in this case, the proposal, again, it's a policy decision, but I think probably that since it's the situation where the person was released and then proposed to be brought back, the burden is on the state in this instance rather than on the person themselves.

[Senator Robert Norris (Vice Chair)]: Okay. Not not to delay things. But when you get to page nine, it appears again on line 20. That may apply there also, I guess. We'll wait till we get there. Yes.

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

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: So

[Senator Tanya Vyhovsky (Member)]: does that mean that the burden of proof to hold someone from the state is a lower burden of proof than it is on the person to have their freedom?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Say that one more time. I'm sorry.

[Senator Tanya Vyhovsky (Member)]: So the way I'm understanding what you said is, by the way this bill is contemplated, there is a lower burden of proof on the state to deny someone freedom than there is on the person to gain their freedom.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah, I think that's right. As I mentioned, whether or not the committee wants to do that as a policy decision up for you. But I think the procedural posture is a bit different because the person's coming over from the criminal division in the first instance, as opposed to here where they've already been released. But yes, the burden on the state to readmit the person is a lower threshold than it is on the person to not be committed after they've been sent there from the criminal court.

[Senator Tanya Vyhovsky (Member)]: Thank you. I just wanted to make sure my understanding of that was true. That seems problematic. But I know that's not a question or statement for

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

[Senator Nader Hashim (Chair)]: So so in this second scenario where somebody gets released

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

[Senator Nader Hashim (Chair)]: They are competent, they've presumably gone through a way to the evidence hearing, and the state didn't prevail to hold them without bail, Would we need to include language in this new language saying that if they were to be readmitted, hold without the 7,553 process doesn't apply anymore? Or is there is there any sort of contradiction here that's created with the second part?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I don't think there is with the bail provision, but I would defer to that. Maybe something you want to hear from judge Zone or somebody about, I think this is separate notion, but again, you might practitioners might have a better perspective on that.

[Senator Nader Hashim (Chair)]: All right. We can can keep going.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Okay. So that's that's new new procedure for someone who's been found competent and then released and how they might conceivably be brought back on an expedited basis. So this is the medication language. I don't think there's any change here. So this is, remember the weather and under what circumstances involuntary medication can be administered is the standards are based on a Supreme Court case. That language remains as it is. At the unresolved issue of how to under what standard the charges might be dismissed against a person who is after having been found incompetent, their case remains inactive for a period of time. So that's just highlighted to flag it. Not that not that there were any changes. Alright. So now we're moving into the NGRI, the not guilty by reason of insanity population. So these are people who were found not guilty by reason of insanity. Four, and you see lines four and five there has to again be a life sentence offense. They are committed to the forensic facility. And there has to be a hearing right away. And then it's at that hearing that the court orders this forensic assessment prior to that for purposes of the hearing to look at dangerousness, things of that nature. And then here we get into the burden of proof and who has to establish it by and by by what standard at this hearing. So the person is committed because they've they've been found not guilty by reason of insanity for a crime with a lifetime maximum sentence. And then within forty days, they're supposed to be this hearing to determine whether they should be remain committed at the facility. And at that hearing, the person has the burden of establishing by clear and convincing evidence that they're not suffering from a qualifying condition that would create a substantial risk of bodily injury to another person.

[Senator Nader Hashim (Chair)]: Eric, I will just quickly mention once we get if and when senator Baruth comes by, I do want to address the with or without prejudice piece well as the burden piece, which is in multiple locations.

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

[Senator Nader Hashim (Chair)]: Just making a note of that that the reason we're not making our decision on those decision points right now is that we're missing one senator, but I'm hoping to wrap those pieces up today. Just want to let you know.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Alright. Thank you. So I can kind of move through those since there aren't any changes here. It's just highlighting that the that the issue is still being discussed by the committee. So I'll move those through those for now to any additional changes in language. So again, assuming the court does find that the person has a qualifying condition that if they're released would potentially cause harm to another person, then the person is committed to the facility. And they remain there until either the clinical services director certifies that they're no longer suffering from that condition. But again, there's a an opportunity for the person to file for a review of that decision. That's on an annual basis. Just yeah, there it is. That's lines 10 to 12 page nine. So the person can file petition once a year to demonstrate that they're no longer suffering from the condition that would cause us substantial risk of bodily injury to another person. No changes to these pieces. This is just so just to so the committee can see it this language on subsection F page nine. And this may be what you're referring to. I think Senator Norris probably that's why the burden was where it was on the language you were just looking at, because that language was based on this language. This is a different proceeding. Again, this is for purpose of the NGRI people. Well, if a person has been released, so if in other words, they've been released under conditions, because they've been found, the courts made a finding that they're no longer a substantial risk of bodily harm to another person. If that's the case, then the court can release the person on conditions. This subsection F and this is no changes here, but just so the committee knows where the where the other language you were just looking at came from. There's this process for immediate see line 14 there. Commissioner shall actively monitor compliance with these orders. Those are the conditions of release and shall immediately return the person to the forensic facility. If the commissioner determines that the person is non compliant with the order, and that the non compliance may create a risk of bodily injury to another person. So that's this procedure that you have for the NGRI that the competency language was based on. And here too, you'll see, as you mentioned, Senator Norris lines nineteen and twenty court court, the state's attorney has the burden of establishing by a preponderance that the person should be readmitted. So again, decision, but yes, the burden is different in this situation where where the person has been released and then is being asked to be readmitted as opposed to their presence at the facility in the first place after they came from the criminal division that first time.

[Senator Nader Hashim (Chair)]: Thank you. Yep. We do have Senator Baruth here with us. I do want to make some of those decisions on the with or without prejudice and where the burden

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

[Senator Nader Hashim (Chair)]: And then I want to shift gears to, Karen Barton. So I think going back to page five is the first decision point that we have to make regarding whether or not a case will be dismissed with or without prejudice. That's that's the first one that I'm seeing. Well, committee, what are your initial feelings on that?

[Senator Tanya Vyhovsky (Member)]: My feelings haven't changed.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Yeah. I'll agree with senator Norris. I don't want, like, the ceiling and sponge thing for me. Just I agree.

[Senator Tanya Vyhovsky (Member)]: I given that all of the information about the charges would still be available, I'm a little confused how it relates to sealing and expungement just because the conviction hadn't happened. That evidence could

[Eric Fitzpatrick (Office of Legislative Counsel)]: be used if it was relevant to a future crime. Not quite.

[Senator Nader Hashim (Chair)]: It depends on what the evidence is. If you're talking about a felony within the last ten years and it's dismissed, then that can't be used. But it goes with the rules of evidence, which gets very complicated.

[Senator Tanya Vyhovsky (Member)]: But doesn't this provision only apply to estimators?

[Senator Nader Hashim (Chair)]: Yep. You're right.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: And they've already served maximum sentence. Yeah. So

[Senator Nader Hashim (Chair)]: Well, my opinion hasn't changed. I would prefer having it be dismissed without prejudice given the situations in which, say, you have multiple charges of a misdemeanor, whether it's disorderly conduct by telephone, somebody is stalking a person over the course of years, and then it ends up getting to something that is much more serious, like a homicide, I don't think closing the door to bringing back those charges is necessary.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Being on

[Senator Nader Hashim (Chair)]: conditions of release for two years is different than being on probation or having a sentence imposed. So I would like to stick with without prejudice, which reverts back to the original language. Does that sound good, Eric?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. With total policy call, whatever you guys whatever you're thinking. So we're going with without?

[Senator Nader Hashim (Chair)]: Yes, please. Yep.

[Eric Fitzpatrick (Office of Legislative Counsel)]: So we wanna move on to the burdens and the standard of review.

[Senator Nader Hashim (Chair)]: Yes. So that starts on page seven. I do think, and this is in multiple areas, I do think that the burden does need to be placed on the state rather

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: than

[Senator Nader Hashim (Chair)]: the person. I think there are as our all the Supreme Court says there's practical serious practical deficiencies in having a person who was detained be the one who makes the motion and has the burden. It's the state that has the burden in the civil commitment process as well. So I do think that it needs to be the state establishing by clear and convincing evidence that the person is no longer suffering from a qualifying condition that upon the person's release would create substantial risk of bodily injury to another person and having that repeated where applicable throughout the bill. That's my opinion. Usually, I try to share my opinion at the end, but I

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: have to do that for

[Senator Nader Hashim (Chair)]: this one. So, committee, what are your are your thoughts on that, senator Norris?

[Senator Robert Norris (Vice Chair)]: I don't have a problem with the state having the burden approved on their spouses. Such as I said earlier, I once again, the burden has to be clear and convincing. I don't care who has to prove it. We have a responsibility to the public, and that 51% doesn't meet that threshold that I feel comfortable with. I can go on and stay having to prove that even at that clear

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: and convincing level. And I can go along with that slightly different reasons, but if we're moving the burden, I should

[Senator Nader Hashim (Chair)]: And go along with clear and convincing. And and it is the burden on the state that has that higher threshold that the state has to meet. Just wanna

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: make sure that's Yeah. We're good.

[Senator Nader Hashim (Chair)]: So, yes, if we could make that change, Eric, where the state has the burden and we are keeping it keeping it clear and convincing. Yep.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Sounds good. Alright. So we've resolved those two issues. Let's see where we are next. We just talked about this readmit. So it sounds like to be consistent, I'm looking now at the readmission procedure, then it would be the same in the competency case. I'm on page nine, line twenty and twenty one for consistency purposes. Again, this is where the the the state's trying to bring the person back into the facility. Make that clear and convincing as well. Line 20 for so that's consistent throughout, I assume. So I'll get that one too.

[Senator Nader Hashim (Chair)]: What's what are your thoughts? Consistency.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Just thought it's today. And it's still this day. Of

[Senator Robert Norris (Vice Chair)]: course, it is today. I can go along with that.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Alright. Got it. Thanks.

[Senator Nader Hashim (Chair)]: I think I think we all agree. Yeah. Alrighty.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think that, you you talked about the definition of qualifying condition as well. There aren't any changes to this draft, I don't believe, but that's an issue the committee was discussing.

[Senator Nader Hashim (Chair)]: Yeah, I'm not sure that I want to tread too heavily into the qualifying condition piece because I think that is more likely going to be in Senate health and welfare. But also we have Karen up shortly who may be able to shed some more light on that. So maybe we can put star a next to qualifying condition. Okay.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Alrighty. Sounds good. Now we do have some new language on the on the public records issue. And this is in response to the testimony that the commissioner heard from the doctor at the Howard Center. And remember that the idea here was that who should have access to the person who's been committed to their, who should be able to view their records. And she had mentioned the idea that maybe the person's future healthcare providers would benefit from being able to see them. And I ran this language by Katie McQuinn in our office as well. She suggested adding the phrase on line 17 to 18 with the person's permission. She indicated that that there may be situations where the person wouldn't necessarily want their records to be viewed by other health care providers. So they should be able to sort of make that decision for themselves. So the way the language is written is that the person's health care providers may with the person's permission view forensic facility records of the person's psychiatric assessments at the facility, including assessments of the person's competency and criminal responsibility. The person would be able to make that decision ultimately about their own records.

[Senator Nader Hashim (Chair)]: Let's hear from DMH or let's hear from Karen before we make any decisions on that piece that was added.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Right. Sounds good. And the last I think the last issue here, yes, is the this has to do with the, you know, who it is in state government is overseeing the facility. And I think the committee had talked about this off and on over the course of the consideration of the bill. And last time, there was this idea that Commissioner Corrections was going to consult with the Commissioner Mental Health. But the language is a little was as written previously was a little open ended about how often that come just that consultation would take place. So the word regularly is proposed to be added so that there's an intent pretty clearly expressed that it's not just a one time consultation. It's an ongoing ongoing responsibility. And I think that's it.

[Senator Nader Hashim (Chair)]: One one sec. Signer Norris.

[Senator Robert Norris (Vice Chair)]: I'm just, curious as to if we could define that regularly. What what does that mean exactly? Is once a week? Is that once a month? What what is we put some the

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: guardrail around that? What does that mean?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think you're right. It is, it is open to some interpretation somewhere above more than once and with some degree of consistency. Eric,

[Senator Nader Hashim (Chair)]: I think one of the conversations we were having was just about the possibility of just saying that the agency of human services will oversee this whole thing, which would include the Department of Corrections and the Department of Mental Health. And so I think just saying that it's the agency of human services will kind of clear up some of the unnecessary redundancies because they're under that same umbrella. And so I don't know if that's oversimplifying it. Perhaps it is. But that's that's my

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes. That's, that's totally fine. You can do it that way, sort of, since they're all under the same umbrella.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Alright.

[Eric Fitzpatrick (Office of Legislative Counsel)]: And I think that's it. As far as the yep. It takes to the end of the changes for this draft.

[Senator Nader Hashim (Chair)]: Excellent. Karen, are you with us right now?

[Senator Tanya Vyhovsky (Member)]: Yeah, I

[Eric Fitzpatrick (Office of Legislative Counsel)]: am here. Should I stop sharing my screen so you can chat with Karen? Do you want to keep the language up? Whichever you prefer.

[Senator Nader Hashim (Chair)]: Yeah, you can stop sharing your screen. Thank you, Eric.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Appreciate it. Yeah, you bet.

[Senator Nader Hashim (Chair)]: Karen, do you mind if I know we're running a little bit behind. Do you mind if we just take five minutes? Because our committee has been going for a little while, and we can come back? We can also push back S-one 186 so you have sufficient time.

[Karen Barton (Department of Mental Health)]: Sure. That sounds great.

[Senator Nader Hashim (Chair)]: Okay. Great. We'll be back in five minutes.

[Senator Tanya Vyhovsky (Member)]: Thank you.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Thank you. Alright.

[Senator Nader Hashim (Chair)]: We can go off and maybe just come back in five minutes.

[Jack McCullough (Vermont Legal Aid, Director, Mental Health Law Project)]: Oops.