Competency to Stand Trial, Phase II:

1. Competency to Stand Trial, Phase II: DSHS Has Not Met Performance Targets—Better Management and Analysis Could Help it Do So Preliminary Report Elisabeth Donner, Zane Potter, Eric Thomas, and Sarah Unbehaun JLARC Staff

2. Competency Services Intended to Prevent Prosecution of Mentally Incompetent Defendants • Criminal defendants are not competent to stand trial if they: • Lack capacity to understand the proceedings against them; or • Cannot assist in their defense. • State statute requires that “no incompetent person shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues.” (RCW 10.77.050) Competency to Stand Trial Audit 2 of 2 Phase I Report Page No. 1

3. 2012 Legislation (SSB 6492) Provided Guidance to DSHS and JLARC DSHS’s reported increase in referrals raised concerns about amount of time defendants wait for evaluation. DSHS JLARC • Directed JLARC to complete two performance assessments of the agency’s approach and success in meeting targets. • First study completed December 2012. Competency to Stand Trial Audit 2 of 2 Legislation established performance targets for how long DSHS has to complete competency evaluations. Report Page No. 1-2

4. Key Points in Today’s Presentation Overview of competency services DSHS has not consistently met statutory targets Analyses DSHS can perform to help determine best way to reach the statutory targets Opportunities for improvements based on review of defendant data, WA’s process, and other states Five Legislative Auditor recommendations to help DSHS meet statutory requirements and improve collaboration between system partners Competency to Stand Trial Audit 2 of 2 Report Page No. 3-33

5. Background: DSHS Provides Competency Evaluation and Restoration Services to the Courts

6. Other Parties Involved in the Competency Process Can Contribute to Delays Steps in the Initial Evaluation Process Who is responsible? 1 Defendant’s competency questioned Trial suspended Attorney Judge Defendant sent to jail or released to community Court Four documents sent to hospitals 2 Court Jail Evaluation Period Begins for DSHS Evaluator assigned, evaluation scheduled 3 DSHS Materials reviewed Defendant interviewed and tested Report with opinion written 4 DSHS Report distributed to Court 5 DSHS Evaluation Period Ends for DSHS Competency hearing scheduled 6 Court 7 Defendant’s competency determined Judge Competency to Stand Trial Audit 2 of 2 Report Page No. 5, 21-22, App. 6

7. DSHS is Responsible for Providing Competency Services at No Cost to Courts DSHS Department of Social and Health Services BHSIA Behavioral Health and Service Integration Administration Western State Hospital Eastern State Hospital According to DSHS, approximately $87.5 million in 2011-13 biennium. Competency to Stand Trial Audit 2 of 2 Report Page No. 3-4

8. Competency Services Include Evaluations and Restoration Initial Evaluations Hospital Restoration Usually conducted by psychologists from Eastern or Western State Hospital. A psychiatrist, a social worker, and nurses attempt to restore defendant to competency using approaches such as medication management and education on judicial process. Court order determines evaluation setting. Outpatient Jail Community An evaluation is conducted prior to end of court-ordered period of restoration. Inpatient Hospital Competency to Stand Trial Audit 2 of 2 Report Page No. 3-5

9. Most Evaluations Take Place in Jails Evaluation Referrals By Setting, 2012 Hospital (inpatient) 13% Community 19% (outpatient) 68% Jail (outpatient) Total Referrals: 2,939 Source: JLARC staff analysis of DSHS data. In 2012, 80% of initial evaluations were referred to Western evaluators. Competency to Stand Trial Audit 2 of 2 Report Page No. 3

10. DSHS Evaluators Are Based at the Hospital and Travel to Outpatient Settings WEST EAST San Juan Whatcom Evaluators travel to: Evaluators travel to: Pend Oreille Okanogan Ferry Stevens Skagit • Jails • Jails Island • Compfests • Community locations Clallam Snohomish Defendants travel to: Chelan Jefferson Spokane Douglas • Hospital Lincoln Kitsap King Mason Grays Harbor CompFest CompFest 381 mi Grant Kittitas Whitman Adams round trip Pierce Thurston Pacific Lewis Garfield Franklin Columbia Yakima Benton Asotin Walla Walla Wahkiakum Cowlitz Skamania Klickitat Clark Source: JLARC staff analysis of DSHS information. Competency to Stand Trial Audit 2 of 2 Report Page No. 3-4

11. DSHS Has Not Met Targets and Key Elements of Statute Are Not in Place

12. Identified Five Areas of Concern 1 Not Consistently Meeting Performance Targets Established in SSB 6492 2 Not Completed 2012 Plan For New Statutory Requirements 3 Not Implemented Other Key Statutory Requirements 4 Not Provided Accurate or Timely Performance Reporting 5 Not Determined Why It Has Not Met Its Own Staffing & Productivity Assumptions Competency to Stand Trial Audit 2 of 2 Report Page No. 7-20

13. Recommendations Intended to Provide DSHS With Better Management Information Improve performance reporting Develop and implement a service delivery approach and staffing model to meet the targets Address non-compliance with statutory requirements Improve collaboration between key system partners Establish ongoing training Competency to Stand Trial Audit 2 of 2 Report Page No. 2, 29-33

14. 1) DSHS Is Not Consistently Meeting Statutory Performance Targets (SSB 6492) Intended to “sustainably improve the timeliness of services related to competency to stand trial.” Setting Days to Admit Defendant or to Complete Evaluation % Referrals Meeting Targets (11/1/12 to 4/30/13) Average Jail 7 days 11% 21days Admit within 7 days 24% Hospital 20 days Targets effective November 2012 113 days Community 21 days 8% Target effective May 2013 Source: JLARC staff analysis of hospital data. Competency to Stand Trial Audit 2 of 2 Report Page No. 7

15. 2) DSHS Has Not Completed Its 2012 Plan for New Statutory Requirements • In Phase One report, DSHS reported its plan to meet new statutory requirements and challenges. • In July 2013, the Administration reported that many key actions were not completed. • Not clear that all actions reported as “complete” had been implemented. • JLARC staff observed lack of clear communication between headquarters and hospitals. Competency to Stand Trial Audit 2 of 2 Report Page No. 11

16. 3) DSHS Has Not Implemented Other Key Statutory Requirements to Date Requirement in Statute • DSHS Status • Quality of evaluations shall not diminish. No definition of “quality evaluation.” No process in place to monitor and review quality, nor is evaluators’ consistency reviewed. • Ensure that forensic competency resources are spent efficiently and clinically appropriately. • Budget information is estimated. Administration has not analyzed or compared efficiency of current approaches. Procedures to monitor length of stay to ensure release when clinically appropriate and within statutory time limit. Not yet implemented its proposed actions to do so. Competency to Stand Trial Audit 2 of 2 Report Page No. 11, 15, 18-19

17. 4) DSHS Has Not Provided Accurate or Timely Performance Reporting • DSHS required to report annually and quarterly if targets not met. Two quarterly reports released to date: • Annual report due 12/1/2013; not yet released. • Western is addressing data quality and data management. Inaccurate Eastern reporting cannot be replicated using DSHS data • Inconsistent • Different timeframes, different approaches to calculating timeliness • Delayed Quarter ending 12/2012, released 9/2013 Quarter ending 3/2013, released 10/2013 Competency to Stand Trial Audit 2 of 2 Report Page No. 11-12

18. 5) DSHS Has Not Determined Why Its Own Assumptions Are Not Being Met • Reported in 2012 that it could meet statutory targets if it met three assumptions: Staffing Level High turnover at Western State • Not consistently met Evaluator Productivity Does not have accurate information Referral Rate • Has not analyzed whether original assumptions are appropriate, or if other factors have changed to make them impractical. Competency to Stand Trial Audit 2 of 2 Report Page No. 8-9

19. Service Delivery Approach Has Remained the Same Despite Shift in Evaluation Referral Location Western State Hospital Eastern State Hospital % Inpatient % Outpatient 91% 81% 79% 67% 33% 21% 19% 9% 2001 2012 2001 2012 1,319 Referrals 2,343 Referrals 348 Referrals 596 Referrals Source: JLARC staff analysis of DSHS data. Neither the Administration nor the hospitals can report whether current approach is the most efficient. Competency to Stand Trial Audit 2 of 2 Report Page No. 16-17

20. Analysis of Existing Data Could Help Administration Meet Statutory Requirements • Legislature intended for the Administration to meet the targets whenever possible and to “manage, allocate, and request appropriations for resources in order to meet these targets.” • Examine existing internal capacity and workforce issues. • External factors. • Assess effectiveness of current strategies. Administration needs better management information to develop strategies to meet targets. Competency to Stand Trial Audit 2 of 2 Report Page No. 13-19

21. Review of Defendants’ Data, Washington’s Process, and Other States’ Practices Highlights Opportunities for Improvements

22. Analysis of Court and Hospital Data and Review of Promising Practices Attempt to see the process as a whole First analysis to combine court and hospital data Highlights importance of parties’ cooperation and coordination Led to two additional key findings Practices from counties, other states, and the National Judicial College Competency to Stand Trial Audit 2 of 2 Report Page No. 21-26, App. 6

23. Key Finding: Additional Questions May Merit Further Review Additional questions would require additional data; for example, outcomes for defendants whose cases are dismissed. Sample Misdemeanor Cases: Dismissed, found not competent 22% Not dismissed 40% 26% Dismissed, found not competent, referred for civil conversion evaluation 12% Dismissed, though found competent Source: JLARC staff analysis of AOC and DSHS data. Competency to Stand Trial Audit 2 of 2 Report Page No. 21, 23

24. Key Finding: Data on Defendants’ Experiences Can Help With Service Delivery Analyzing this data can help identify delays and common case characteristics, and develop strategies for an efficient service delivery approach. Sample Cases: No previous interaction with criminal justice system 10% 90% had previous interaction with the criminal justice system No previous interaction with criminal justice system Of those,37% were referred for competency evaluations more than once 10% Previous interaction with the criminal justice system Referred for competency evaluations more than once Of those, 37% 90% Source: JLARC staff analysis of AOC and DSHS data. Competency to Stand Trial Audit 2 of 2 Report Page No. 22-25

25. Courts That Refer Defendants for Multiple Evaluations Impact State and County Resources Example: All King County misdemeanor defendants January 2011 to April 2013. • 359 individuals referred for multiple evaluations. If each was referred once, the decrease in referrals would have been equal to the output of two evaluators over two years. • Administration could review referral characteristics and other opportunities such as diversion programs. Competency to Stand Trial Audit 2 of 2 Report Page No. 17

26. Promising Practices From Counties, Other States, and the National Judicial College All parties involved in competency processes could benefit from sharing promising practices. Counties Other States Have taken actions to improve the timeliness of the process, reorganized certain functions to improve efficiency and ensure referrals are appropriate. National Judicial College Drafted best practices for competency evaluations and strongly focused on the need for collaboration and training. Competency to Stand Trial Audit 2 of 2 Report Page No. 25-26

27. Legislative Auditor Recommendations

28. Legislative Auditor Recommendation #1:Improve Performance Reporting The Administration should provide accurate, consistent, and timely reporting on the number of defendants referred for competency evaluations, the number of evaluations completed, the timeliness of completing those evaluations, and timeliness in admitting defendants to the hospitals. Competency to Stand Trial Audit 2 of 2 Report Page No. 12, 29

29. Legislative Auditor Recommendation #2: Develop Service Delivery Approach and Staffing Model • After collecting and analyzing descriptive data about its current operations, DSHS should hire an independent, external consultant to develop: • A service delivery approach that enables the Administration to meet the statutory targets; and • A staffing model to implement the new approach. DSHS should report to the appropriate committees of the Legislature on its implementation of the service delivery approach and the staffing model, including any barriers or resource needs, by December 2015. Competency to Stand Trial Audit 2 of 2 Report Page No. 19-20, 29-31

30. Legislative Auditor Recommendation #3:Comply With Statutory Requirements The Administration should take actions to comply with additional statutory requirements from SSB 6492. The Administration should report to the appropriate committees of the Legislature before the 2015 Legislative session on actions it has taken to address non-compliance with statute. If additional resources or changes to legislation are needed, DSHS should submit a request in the 2015-17 agency budget request. Competency to Stand Trial Audit 2 of 2 Report Page No. 20, 31

31. Legislative Auditor Recommendation #4:Develop Formal Collaboration Approach The Administration, its primary judicial system partners, including the Administrative Office of the Courts, and other stakeholders should meet to develop an approach to assure collaboration and communication among the partners. Competency to Stand Trial Audit 2 of 2 Report Page No. 26, 31-32

32. Legislative Auditor Recommendation #5:Establish Cross Training Opportunities The Administration should work with its judicial system partners, including the Administrative Office of the Courts and other stakeholders, to develop training specific to their professions, as well as training material appropriate for cross training. Competency to Stand Trial Audit 2 of 2 Report Page No. 27, 32-33

33. Next Steps and Contacts Proposed Final Report April 2014 Eric Thomas, Project Lead 360-786-5182 eric.thomas@leg.wa.gov Elisabeth Donner, Research Analyst 360-786-5190 elisabeth.donner@leg.wa.gov Zane Potter, Research Analyst 360-786-5194 zane.potter@leg.wa.gov Valerie Whitener, Project Supervisor 360-786-5191 valerie.whitener@leg.wa.gov www.jlarc.leg.wa.gov