MONTPELIER — A proposal meant to ensure treatment for defendants with traumatic brain injury goes too far by allowing them to be involuntarily committed if they are found incompetent to stand trial, say two high-ranking officials in the Agency of Human Services.
Under current law, charges must be dropped if a judge finds the defendant unfit to stand trial because of traumatic brain injury, or TBI. Rep. Warren Van Wyck, a Republican from Ferrisburgh, introduced legislation that would add TBI to the mental health conditions for which a judge can order involuntary commitment.
Van Wyck told the House Judiciary Committee on Friday that the bill is the result of a case in his district. A sex assault suspect was found incompetent because of TBI, but no follow-up supervision or treatment was offered, he said.
“It could happen again,” Van Wyck said.
The bill would offer treatment for TBI “on parity” with other mental health issues, he said.
Under the bill, a defendant found incompetent because of brain injury would undergo another hearing, after which a judge would determine whether the person should be placed under the custody of the Department of Mental Health for treatment.
Both Commissioner Susan Wehry of the Department of Disabilities, Aging and Independent Living and Commissioner Paul Dupre of the Department of Mental Health said they were troubled by the bill.
Wehry said it is too broad and that the severity of traumatic brain injury can range from a mild sports-related concussion to lasting effects suffered by soldiers who are victims of improvised explosive devices. Cognitive impairment can vary, she said.
Wehry said more research is required on how defendants with TBI should be treated.
Dupre, meanwhile, said the Department of Mental Health has a limited number of acute care beds that are needed for patients with more serious mental health issues. He said any defendants with TBI ordered by a judge into his custody because they are considered a danger to themselves or others will require an acute care bed, which is an “inappropriate use of those resources.”
“There are some unintended consequences that can come from putting this under my care and custody,” he said. “I’m worried that this is a quick fix that’s going to create a situation where … my level 1 beds are filled up.”
Rep. Thomas Koch of Barre Town, the committee’s ranking member, said a solution is needed despite those concerns.
“Point well taken, and I think we understand that. That doesn’t mean do nothing,” he said.
Defender General Matthew Valerio told the committee he has no objection to the bill. He said a survey of public defenders shows there is no real increase in cases where the defendant is found incompetent because of TBI, but awareness has grown.
The survey also showed that many of the defendants in question are soldiers returned from Iraq and Afghanistan who have suffered injuries.
“I think we have to look at this in a compassionate way,” he said. “These are not criminals often by choice. Their activity is contrary to the law, and if you’re the victim it probably doesn’t matter what is the cause, but these are folks oftentimes who have served our country in one way or another. We have to make sure resources are available.”
Addison County State’s Attorney David Fenster told the committee about three cases his office has handled in which charges had to be dropped. In one case, police have been called numerous times to deal with one woman, who is repeatedly found incompetent and released. There is nothing in statute that can provide any treatment or supervision for her, he said.
Lawmakers asked Wehry to investigate how other states are handling the issue and report back to the committee. It will hold at least one more hearing on the legislation.
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