New Aid and Assist Legislation
by: Abassos • July 30, 2011 • no comments
HB 3100, passed in the last session, contains several important changes to the Aid and Assist scheme (aka Fitness to Proceed; aka Adjudicative Competency).
First, defendants will only be able to be sent to the State Hospital to be treated until fit if a judge makes the following findings:
- The person is dangerous to self or others as a result of mental disease or defect; or
- The services and supervision necessary to restore the defendant's fitness are not available in the community; and
- Regardless of which of the above two findings is made, there is no care other than commitment that would better serve the defendant and the community.
The structure of the statute is clearly intended to push more folks into the community to be treated for competency. If there's any reason to treat someone in the community rather than ordering a commitment to the Hospital, the statute allows for community treatment to occur and forces a judge to seriously consider the option.
Second, a judge will be allowed to find "at any time" that a person is "unlikely to become fit in the foreseeable future" and dismiss the case. Right now, if it's crystal clear that a person is never going to be fit to proceed, the judge must still order the person to be "treated until fit", usually at the State Hospital. Only after a commitment for treatment occurs does the judge gain the power to dismiss for permanent unfitness. In the future, the judge will be able to dismiss the case when the issue is first raised. Of course, if there's any doubt in the judge's mind, he or she can always order a person sent to the Hospital or the community to "treat until fit."
Third, when a judge orders an examination to assist in determining fitness to proceed, a certified evaluator would be required to perform the evaluation. See GEI legislation below for more on the certification process that is intended to raise the level of evaluations statewide.
HB 3100 will become active law in January 2012. It's worth noting that while the statute clearly envisions more people being treated in the community, it neither specifies how such treatment will occur nor allocates funding for such a thing. Multnomah County has a fabulous program, run by Jean Dentinger, Katie Lentz and Michelle Campbell, that helps facilitate community based treatment for folks found unfit to proceed. I know that the people at the highest level of power are aware of how fantastic this program is and I'm hopeful that it will spread throughout the state. But until that time, it's not at all clear to me how community based treatment will be supervised, facilitated and accomplished in other counties. Hopefully, between now and January those solutions will start to be fleshed out.
