WPI 360.05 Behavioral Health Disorder—Involuntary Treatment—180 Days

Use this instruction for 180-day involuntary treatment cases.

Select bracketed paragraphs as applicable. If the conduct required by the second bracketed paragraph (see RCW 71.05.320(4)) or the third bracketed paragraph (see RCW 71.05.320(4)(c)) was previously proven in a prior 90 or 180 day commitment hearing, then it is not necessary to prove such conduct again. If the fourth bracketed paragraph is selected, set forth the elements of the felony committed, excluding the element of intent, willfulness, or state of mind. Use the criminal pattern jury instructions, as necessary, for definitions of crimes. The fourth and fifth bracketed paragraphs may not be simultaneously used. The fourth bracketed paragraph is only for individuals who have had charges dismissed pursuant to RCW 10.77.086(4) and for whom the initial petition for civil commitment pursuant to RCW 71.05.280(3) has been filed. The fifth bracketed paragraph is only for individuals who have previously been committed pursuant to RCW 71.05.280(3) and additional involuntary treatment is now sought under RCW 71.05.320(4).

Use WPI 360.03 (Behavioral Health Disorder—Involuntary Treatment—Explanation), WPI 360.06 (Burden of Proof—Behavioral Health Disorder—Involuntary Treatment), and WPI 360.10.01 (Behavioral Health Disorder—Definition) with this instruction. Use WPI 360.05.03 (In Need of Assisted Mental Health Treatment—Definition), WPI 360.11 (Custody—Behavioral Health Disorder—Definition), and WPI 360.12 (Gravely Disabled—Definition) as applicable with this instruction.

Laws of 2020, Chapter 302, § 41; RCW 71.05.320(2); RCW 71.05.280(3).

Constitutionality. The first paragraph of this instruction conforms with the U.S. Supreme Court's opinion in Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). In that case, the court invalidated a Louisiana statute that permitted indefinite detention of insanity acquittees who are not mentally ill but who do not prove that they would not be dangerous. The court held that under the Due Process Clause a state may confine a person for mental illness only if it shows that the person is both mentally ill and dangerous.

The statutes allowing involuntary commitment for persons found incompetent to stand trial on felony charges have been found constitutional. See In re Detention of McLaughlin, 100 Wn.2d 832, 676 P.2d 444 (1984) (the burden of proof, at a 90-day involuntary commitment proceeding, is proof by clear, cogent and convincing evidence); In re Detention of Patterson, 90 Wn.2d 144, 579 P.2d 1335 (1978) (overruled on other grounds). Practitioners should be aware, however, that Patterson might not have laid to rest all constitutional issues for proving dangerousness. These issues continue to be litigated in more recent civil commitment cases, including cases involving commitment of sexually violent predators under RCW Chapter 71.09.

RCW 71.05.280(3) permits commitment of a person adjudicated incompetent in criminal proceedings upon proof of “acts constituting a felony” but without needing to prove the mental state associated with the crime. One possible area of uncertainty, however, arises when the underlying felony consists only of an offense based upon threatening speech (i.e. felony harassment). In criminal prosecutions, the First Amendment of the United States Constitution requires proof of a “true threat,” which is defined as “a statement made in a context or under such circumstances wherein a reasonable person would foresee the statement would be interpreted as a serious expression of intention to inflict bodily harm or to take the life of another person.” State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215, 1219 (2004); see also Comment to WPIC 2.24 (Threat—Definition). Washington's appellate courts have not yet decided whether the “true threat” requirement applies to civil commitment proceedings under RCW 71.05.280(3) when the underlying felony is based upon threatening speech.

In In re Detention of McLaughlin, 100 Wn.2d 832, 676 P.2d 444 (1984), the court held that the respondent is entitled to an instruction stating that the burden of proof is on the petitioner to prove each element of its case by the requisite standard. The WPI Committee concluded that WPI 360.05, as revised, meets this requirement. The requirement is also reflected in a revised version of WPI 360.06 (Burden of Proof—Behavioral Health Disorder—Involuntary Treatment).

Facts proved in a previous proceeding. The instruction is drafted under the assumption that certain facts contained in the statutory elements were proved at the earlier commitment proceeding. See RCW 71.05.320(4). More specifically, if the commitment is being sought under the second paragraph, which involves previous infliction of harm pursuant to RCW 71.05.320(3)(b), or is being sought under the fifth paragraph, which involves a finding of incompetency on previous felony charges under RCW 71.05.280(3), the element of proving the respondent committed the prior acts will usually have been proved in the first commitment proceeding and need not be proved again. See RCW 71.05.320(3) (“If the conduct required to be proven in (b) and (c) of this subsection was found by a judge or jury in a prior trial under this chapter, it shall not be necessary to prove such conduct again.”).

In re Detention of W.R.G., 110 Wn.App. 318, 40 P.3d 1177 (2002), suggests in dicta that the “taken into custody” language should similarly be deleted from the instruction if this fact was proved in an earlier proceeding.

Petition based on a felony, but commitment on other grounds. RCW 71.05.280(3) and RCW 71.05.320(1) allow for individuals referred to the state hospital following dismissal of felony criminal charges due to incompetency to be committed for up to 180 days, rather than the 90 days typically allowed under RCW 71.05.280. However, if a petition for 180 days of involuntary treatment is filed based on the felony grounds, but the felony grounds are not proven at trial and other grounds of commitment are proven, the order for treatment can only be for 90 days. See In re Detention of R.H., 178 Wn.App. 941, 316 P.3d 535 (2014).

Acts constituting a felony. RCW 71.05.320(2)(c) refers to RCW 71.05.280 and makes the fourth bracketed paragraph of this instruction applicable only if the acts committed constitute a felony, and excludes the elements of intent, willfulness, or state of mind.

Felony acts constituting a violent offense. RCW 71.05.280(3) provides that for any person subject to commitment under the fourth bracketed paragraph where the charge underlying the finding of incompetence is for a felony classified as violent under RCW 9.94A.030, the court shall determine whether the acts the person committed constitute a violent offense under RCW 9.94A.030.

Less restrictive alternative. RCW 71.05.320(1) mandates instructing on less restrictive treatment as an alternative to detention in the 90-day treatment situation. Although RCW 71.05.320 is not clear whether this requirement applies as well to 180-day commitment proceedings, case law suggests that it does. See In re Detention of R.A.W., 104 Wn.App. 215, 15 P.3d 705 (2001) (implicitly applying the less restrictive alternative requirements from RCW 71.05.320(1) to a 180-day petition brought pursuant to RCW 71.05.320(2)). The same result is also likely under equal protection analysis. See In re Detention of Dydasco, 135 Wn.2d 943, 959 P.2d 1111 (1998) (equal protection requires that a notice provision applying expressly only to 14-day commitments must also be applied to 90-day and 180-day commitments).

The jury must be instructed to consider a less restrictive treatment that is an alternative to detention whether or not evidence shows a less restrictive alternative is available. R.A.W., 104 Wn.App. at 221–23.