Judge holds state’s mental health agency in contempt

By Martha Bellisle / Associated Press

SEATTLE — A federal judge has found the Washington state agency that oversees mental health services in contempt for failing to provide timely competency evaluations for people waiting in jails.

Judge Marsha Pechman had ordered the agency to conduct in-jail competency evaluations within two weeks of receiving a court order, but the state has failed to meet that timeline. To get the Department of Social and Health Services into compliance, Pechman imposed a fine of $750 per day for each day a person waits beyond the two-week period. It jumps to $1,500 a day if the person is still waiting after another week.

Kim Mosolf, a lawyer with Disability Rights Washington, said they’re glad the court his holding the agency accountable.

“We hope this new contempt order will motivate the state to follow the advice of the court monitor and other experts to reduce the wait lists for competency and restoration services,” Mosolf said. “It has been two and one-half years since Judge Pechman’s original order and class members continue to suffer.”

Pechman had previously found the agency in contempt for failing to treat people in a timely fashion after they were found incompetent to stand trial. Fines for that order have topped $30.6 million.

DSHS assistant secretary Carla Reyes said they’re disappointed with the ruling and said their efforts to reduce wait times were hampered by increased demand.

“We have made significant strides to reduce wait times for class members,” Reyes said. “Some of the key changes include the addition of over 50 percent more forensic evaluators; the creation of several outstation locations to put evaluators closer to the jails; and the implementation of mobile technology. These enhancements have decreased wait times.”

Jaime Smith, spokeswoman for Gov. Jay Inslee, said the state is treating twice the number of people in a shorter average time.

“The governor has put tremendous, unprecedented focus on improving our state’s mental health system — on both the civil and forensic sides — which relies heavily on the support and capacity of community providers and hospitals, law enforcement and the Legislature,” she said. “We are continuing to look at any and all other options that better enable faster treatment of forensic patients without compromising the care of other patients.”

Agency representatives made similar statements to Pechman during hearings on the contempt motion, but she didn’t accept them, according to her order.

As of June 2017, only 46.2 percent of people waiting in jails received timely evaluations, which increases the stress on the person and strains the jails and the criminal justice system, she said.

In 2015, the average number of in-jail evaluation orders per month was 222, and in 2017, that number was 291, she said. As of August, there were 38 evaluators and “if each evaluator were accomplishing the modest goal of completing 10 evaluations a month, it would be sufficient to meet current demand,” Pechman said.

Instead, there’s been a “dramatic decrease” in the percentage of evaluations done in a timely manner, she said.

The agency also is failing to factor in things like vacations, sick leave and “failed to even find out what a competitive market rate is in the area for evaluations” so reserve evaluators could be called in when demands peak.

“There is no other conclusion but that Defendants have chosen not to prioritize the constitutional rights of class members when making decisions as to how many evaluators are necessary to reach compliance and cease violating the constitutional rights of the class,” Pechman said. “The Court is hopeful that the defendants will stop their procrastination and false promises and heed the advice of every expert to advise them.

Pechman ordered the agency to increase the number of evaluators, expand the types of professionals used to perform evaluations, increase their productivity, and pay outside professionals a competitive rate for help, she said.

Pechman ordered the agency and governor’s office to report back to her Nov. 21.