Washington’s Involuntary Treatment Act
By Annika Carlsten, Van Chu, Rachelle Francis, Christopher Graves, Joseph Marshall, Ysabel Mullarky, Eric Stickel, and Jennifer Stutzer
In honor of upcoming BIPOC Mental Health Month,11 www.mhanational.org/bipoc/mental-health-month. BIPOC stands for Black, Indigenous, and people of color. the Involuntary Treatment Act (ITA) attorneys at the Snohomish County Public Defender Association wrote this overview of the statute and how it operates in Washington. The ITA affects all types of legal practices. Have you already encountered the ITA? If not, there is a good chance you will. We hope this article will help you.
OVERVIEW OF THE ITA
The ITA22 Chapter 71.05 RCW. provides the legal framework for civil commitment of persons in Washington state who do not accept voluntary inpatient treatment. These are individuals who are experiencing acute symptoms related to a behavioral health disorder such that behavioral health professionals ask the state to intervene and compel treatment on an involuntary basis. Civil commitment is the legal process by which a person is confined within a medical facility or psychiatric hospital, against their wishes, on the basis of a mental health and/or substance use disorder. A person may be involuntarily committed if (1) they are likely to pose serious harm to themselves or others or (2) they are in imminent danger from a “grave disability.”
The ITA directs the actions of courts, law enforcement, hospital personnel, attorneys, designated crisis responders (DCRs), and other mental health professionals. The ITA process may be initiated against anyone in Washington state. A person who is detained is held at a licensed Evaluation and Treatment Facility (E&T) or Secure Withdrawal Management and Stabilization Facility (SWMS). DCRs conduct the initial investigation/evaluation of the person, who is usually brought to their attention by the detained person’s family members or by first responders or medical providers. A person detained by a DCR may be held for an initial 120-hour emergency detention for evaluation and treatment (excluding weekends and holidays). The person must be released after the initial 120 hours unless the facility, working with the prosecutor, petitions the court for up to 14 days of additional involuntary treatment.
Any person detained has the right to legal representation through this process. After the 14-day petition is filed, the detained individual must choose whether to continue the case, stipulate to the underlying petition, or proceed to a hearing to contest the petition. At a hearing, the court may hear from the detained person and/or other witnesses, as well as from hospital staff, to determine if the state has met its burden to continue to involuntarily hold the person. If the court grants the petition for additional inpatient treatment, hospital staff or the DCR may petition to keep the person held for additional time beyond 14 days. For adults, the hospital may petition the court for an additional 90 days of involuntary treatment. There is no 90-day petition for youth, so if the hospital is seeking further involuntary treatment of a youth after a 14-day commitment, it must petition for 180 days of additional treatment. If the state petitions for involuntary treatment beyond the 14-day petition, the person being held is entitled to a jury trial on the issue of whether the extended detention is appropriate. After a person is committed for 180 days, staff can continue to file 180-day petitions to keep the person involuntarily committed.
INTERSECTIONS WITH OTHER AREAS OF LAW
The ITA may appear to be a niche area of law that will not impact your practice or affect your clients, but this practice is inherently about crisis, something all humans are susceptible to. A crisis could mean severe depression and thoughts of suicide. It could mean the loss of a pregnancy, child, sibling, partner, or parent. It could mean a change in health insurance that results in not being able to afford one’s prescriptions. It could mean severe cognitive decline due to age or disease, or a “grave disability” caused by stroke, heart attack, or a motor vehicle accident. Clients in mental health crisis might be in a jail or heading to a jail on criminal matters. For a variety of reasons, even individuals with no significant history of mental health struggles can end up being unable to care for themselves.
Although this article will focus on the ITA in the context of criminal practice, it is important to note its relevance to practitioners in many other areas, including:
Elder law:
- Guardianship and conservatorship
- Medical care directives, powers of attorney
Tort law:
- Wrongful death33 Poletti v. Overlake Hosp. Med. Ctr., 175 Wn. App. 828, 303 P.3d 1079 (2013).
- Medical malpractice44 Dalen v. St. John Med. Ctr., 8 Wn. App. 2d 49, 436 P.3d 877 (2019)(summary judgment for defendant health care providers reversed in suit by individual detained involuntarily).
Civil rights:
- Disability rights
- Second Amendment rights
- Immigration
Areas of law where competency (and therefore mental/behavioral health) can be an issue:
- Wills and estates
- Family law: dependency, dissolution, and custody
- Criminal law
If you discover that your client has been civilly committed, it may be difficult to get in touch with them as even the fact that they are in a hospital is protected by federal law.55 Health Insurance Portability and Accountability Act of 1996 (HIPAA). If you are aware of what hospital or facility, you may be able to leave a message with the unit or behavioral health facility for your client to contact you. If you know which county your client is detained in, you may be able to get in touch with the county public defender or office of public defense to ask for their assistance in locating or connecting with your client. But be aware that the attorney representing your client in their ITA case will need to get their permission to reach out to you. Please also understand that the hospital staff may not be able to confirm or deny that your client is there. If you are successful in connecting with your client, you can request that your client sign a release of information to allow you to speak to the staff and doctors and also to get access to medical documents. ITA cases are unusual in that the hearings are held in open court66 In re Detention of D.F.F., 172 Wn.2d 37, 256 P.3d 357 (2011). but the pleadings are closed.77 RCW 71.05.620. If you have contact with your client and know of the date and time of their hearing, you should be able to attend by coming to the facility where they are held or by remote access.
ITA AND CRIMINAL PRACTICE: RCW 10.77 versus RCW 71.05
When attorneys practicing criminal law encounter client mental health issues, it is often in the context of the client’s competence to stand trial. Competence is governed by RCW 10.77.060 et seq. and can be raised by either the defense or prosecution if there are concerns that a defendant is not competent to stand trial.88 RCW 10.77.060. In the criminal context, a defendant is competent if they are (1) able to understand the nature of the charges against them and (2) able to assist in their own defense.99 State v. Lawrence, 166 Wn. App. 378, 271 P.3d 280 (2012). If either party raises competence under Chapter 10.77 RCW, the defendant must be evaluated by a mental health professional within 14 days if the defendant is in custody.1010 State v. Hand, 192 Wn.2d 289, 429 P.3d 502 (2018)(en banc) (holding that a 70-day delay in a competency evaluation did not warrant dismissal of the underlying charges). However, the state has been held in contempt for the last seven years because evaluations have taken longer than 14 days.1111 Trueblood v. DSHS, 822 F.3d 1037, 1043 (9th Cir. 2016) (holding that the substantive due process clause protects a criminal defendant’s right to receive a competency evaluation within 14 days at most. The state has never successfully evaluated people within that timeline and has instead paid contempt fines that have been used to fund outpatient treatment facilities in Washington). If the defendant is not in custody, the evaluation can take even longer.
Operating outside of the criminal context, and to be distinguished from evaluation of a criminal defendant’s competency to stand trial, is involuntary commitment, governed by RCW 71.05.010 et seq. and discussed in detail in the first section of this article. Anyone can be evaluated by a DCR under Chapter 71.05 at the request of any other person (although it is usually a health care professional or family member). If the DCR finds that the person they are evaluating is a danger to themselves, others, or property, or is “gravely disabled,” then this person will be detained at a psychiatric hospital or Evaluation and Treatment Facility for 120 hours.1212 RCW 71.05.153. After that initial detention period, the facility can petition to extend detention for up to 14 days, which requires a hearing.1313 RCW 71.05.230.
The two rules do often meet. A “dismiss and detain” refers to the court’s obligation under RCW 10.77.088 to dismiss criminal charges without prejudice if the DCR finds that the defendant is not competent to stand trial. The court must then order an evaluation under RCW 71.05.153 to determine if the person should be detained and evaluated further.
In terms of consequences for clients, the two rules are similar but different. A 10.77 evaluation could result in the dismissal of criminal charges if the client is found incompetent. Evaluations under 10.77 can take a long time, particularly for out-of-custody clients, which leaves the criminal charge pending while the client waits for the evaluation. However, a 10.77 finding usually will not be binding on any future proceedings or have any additional collateral consequences. If a person is detained under 71.05, their right to possess firearms can be suspended for six months immediately,1414 RCW 71.05.182. they can be subject to involuntary medication, and they cannot leave the facility without a doctor’s approval. If a person is detained for 14 days following the initial 120-hour period, their firearm rights are indefinitely suspended1515 RCW 71.05.240(6). and there can be immigration and other civil consequences related to the ITA court finding and to being unavailable for the period of their detention. Individuals with licenses in health care can also be impacted by an adverse finding.
IMPACT ON BIPOC CLIENTS — THE DATA
A study published in 2022 in Psychiatric Services opens with this statement: “Involuntary psychiatric treatment may parallel [racial and ethnic] inequities present in the larger society. Prior studies have focused on restraint and seclusion, but less attention has been paid to the civil commitment system because of its diversity across jurisdictions.”1616 https://ps.psychiatryonline.org/doi/full/10.1176/appi.ps.202100342. The study, conducted by researchers from Massachusetts General Hospital and Harvard Medical School, looked at over 4,000 patients during the six-year period of 2012-2018. The results of the study showed that: “Patients of color were significantly more likely than [w]hite patients to be subjected to involuntary psychiatric hospitalization, and Black patients and patients who identified as other race or multiracial were particularly vulnerable … .”1717 Id.
A 2022 Washington Law Review article looked specifically at these issues in Washington and King County: “[P]eople detained for treatment under the ITA—disproportionately Black and [b]rown individuals—become increasingly likely to cycle back through the system with each detention.”1818 Hannah Garland. “Committed to Commitment: The Problem with Washington State’s Involuntary Treatment Act,” 97 Wash. L. Rev. 1045 (2022), available at https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=5235&context=wlr. This may indicate that implementation of Washington’s current ITA system fails to treat people of color in a way that achieves long-term stability. More data is needed to be sure.
CONCLUSION
Involuntary commitment should be a last resort for individuals in mental health crisis, but voluntary social services in our state are strained and underfunded. The 2022 studies cited previously indicate that the ITA disproportionally affects people of color. Because more data is needed on the long-term impact of Washington’s current ITA system, the state should gather and publish (for transparency) statistics to show who is impacted by involuntary civil commitment and to measure long-term outcomes.
NOTES
1. www.mhanational.org/bipoc/mental-health-month. BIPOC stands for Black, Indigenous, and people of color.
2. Chapter 71.05 RCW.
3. Poletti v. Overlake Hosp. Med. Ctr., 175 Wn. App. 828, 303 P.3d 1079 (2013).
4. Dalen v. St. John Med. Ctr., 8 Wn. App. 2d 49, 436 P.3d 877 (2019)(summary judgment for defendant health care providers reversed in suit by individual detained involuntarily).
5. Health Insurance Portability and Accountability Act of 1996 (HIPAA).
6. In re Detention of D.F.F., 172 Wn.2d 37, 256 P.3d 357 (2011).
7. RCW 71.05.620.
8. RCW 10.77.060.
9. State v. Lawrence, 166 Wn. App. 378, 271 P.3d 280 (2012).
10. State v. Hand, 192 Wn.2d 289, 429 P.3d 502 (2018)(en banc) (holding that a 70-day delay in a competency evaluation did not warrant dismissal of the underlying charges).
11. Trueblood v. DSHS, 822 F.3d 1037, 1043 (9th Cir. 2016) (holding that the substantive due process clause protects a criminal defendant’s right to receive a competency evaluation within 14 days at most. The state has never successfully evaluated people within that timeline and has instead paid contempt fines that have been used to fund outpatient treatment facilities in Washington).
12. RCW 71.05.153.
13. RCW 71.05.230.
14. RCW 71.05.182.
15. RCW 71.05.240(6).
16. https://ps.psychiatryonline.org/doi/full/10.1176/appi.ps.202100342.
17. Id.
18. Hannah Garland. “Committed to Commitment: The Problem with Washington State’s Involuntary Treatment Act,” 97 Wash. L. Rev. 1045 (2022), available at https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=5235&context=wlr.