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WPI 360.13 Likelihood of Serious Harm—Behavioral Health Disorder—Definition

6A WAPRAC WPI 360.13Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 360.13 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part XIX. Involuntary Treatment

Chapter 360. Behavioral Health Disorders

WPI 360.13 Likelihood of Serious Harm—Behavioral Health Disorder—Definition

Likelihood of serious harm means [either]:

[a substantial risk that physical harm will be inflicted by an individual upon his or her own person, as evidenced by recent threats or attempts to commit suicide or inflict physical harm on oneself] [or]

[a substantial risk that physical harm will be inflicted by an individual upon another, as evidenced by a recent overt act that caused such harm or which places another person or persons in reasonable fear of sustaining such harm] [or]

[a substantial risk that physical harm will be inflicted by an individual upon property of others, as evidenced by a recent overt act that caused substantial loss or damage to the property of others] [or]

[the individual has threatened the physical safety of another and has a history of one or more violent acts].

NOTE ON USE

Use bracketed material as applicable.

Do not use the first bracketed paragraph relating to serious harm to oneself in 180-day treatment instructions.

COMMENT

RCW 71.05.020(35). The Legislature amended RCW 71.05 et seq. to collectively refer to mental illness and substance abuse as behavioral health disorders. See Laws of 2020, Chapter 302, § 41.

Under RCW 71.05.320(2)(a) through (d), relating to 180-day treatment cases, harm to oneself is not included as an element.

The WPI Committee has substituted the words “a recent overt act” for the word “behavior” in the second and third paragraphs of this instruction based on In re Detention of Harris, 98 Wn.2d 276, 654 P.2d 109 (1982). In Harris, the court interpreted then RCW 71.05.020(3) “as requiring a showing of a substantial risk of physical harm as evidenced by a recent overt act.” Harris, 98 Wn.2d at 284.

Despite this holding from Harris, two Court of Appeals cases have held that how “recent” the act must be may depend upon the patient's opportunity to reoffend. In re Detention of P.S., 75 Wn.App. 571, 879 P.2d 294 (1994); In re Detention of Pugh, 68 Wn.App. 687, 845 P.2d 1034 (1993). In Pugh, a Division II case, the court found that the absence of overt acts more recent than five years before the hearing was

readily explainable as a lack of opportunity to offend rather than a demonstration of improvement so as to negate the showing that he presents a substantial risk of physical harm. We are satisfied that his earlier offenses resulting in convictions when considered with his confinement and current diagnosis satisfy the requirement that his future dangerousness be evidenced by a recent overt act.

Pugh, 68 Wn.App. at 696. Division I followed the Pugh rationale in P.S., finding a 1989 rape charge sufficient evidence of a recent overt act to support a 1992 finding in favor of continued commitment, when combined with evidence of other behavior and expert testimony supporting a great likelihood of reoffense. P.S., 75 Wn.App. at 574–77.

[Current as of January 2021.]

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