State asks for time to study how suspects with traumatic brain injury are handled by court system

Disability and mental health officials Tuesday told lawmakers they need more time to gather data about people with traumatic brain injury before the Legislature passes a bill to plug a loophole in how offenders with TBI are treated in the court system.

Lawmakers this session are grappling with how to treat suspects found incompetent to stand trial because of a traumatic brain injury and are deemed to pose a danger to themselves or others.

They are considering a bill that would allow suspects with TBI to be committed to the Department of Mental Health, which is what happens when people with mental illness or developmental disabilities are deemed incapable to stand trial.

H.555, sponsored by Rep. Warren Van Wyck, R-Ferrisburgh, would add TBI, which is not considered a mental illness or developmental disability, to that list.

The committee last month heard from a woman whose son was sexually assaulted by a relative with TBI. The relative was deemed incompetent to stand trial, charges were dropped and he now lives next door to the victim’s family, the woman told lawmakers.

 Susan Wehry, commissioner of the Department of Aging and Independent Living

Susan Wehry, commissioner of the Department of Aging and Independent Living

But because traumatic brain injury patients are unique, the state needs time to research what type of program would be best suited to treat them and how much it would cost, said Susan Wehry, commissioner of the Department of Disabilities, Aging & Independent Living (DAIL) and Dr. Jay Batra, medical director for the Department of Mental Health.

“It is a new population, it is a complex population, it is a complicated problem to try to solve as evidenced by all other states,” Wehry said.

Tuesday was the second time those departments have testified on this bill, after pointing out concerns with the proposed law last month. In the meantime, Batra researched other states’ approach to people with TBI deemed incompetent to stand trial.

Wehry said people with traumatic brain injury fall somewhere between those with developmental disabilities and the broader public safety population.

Wehry and Batra on Tuesday said they don’t know how many people in Vermont fall into the category of those deemed incompetent to stand trial because of TBI and are a risk to themselves or others. Two or three cases have been discussed publicly, but Wehry said judges would likely use the classification more often if it existed.

The closest comparable program in Vermont is Act 248. That law commits people with intellectual disabilities who are deemed to be incompetent to stand trial and dangerous to the custody of DAIL, Wehry said.

There are 34 individuals under Act 248 custody, she said. The average annual cost of serving an individual in custody is about $100,000, according to her testimony.

In addition, there are more than 225 individuals with developmental disabilities who have never been charged but are “public safety risks” being served by DAIL, she said. The total cost of that program is more than $25 million a year, Wehry said.

Act 248, however, is not without flaw, Wehry said, and has often led to unnecessarily long commitments. The law was crafted in 1987 before medical advances that have allowed many people, including those with TBI, to restore certain skills and lead productive lives.

Toward the end of discussion, Rep. Suzi Wizowaty, D-Burlington, asked why people deemed incompetent to stand trial are committed in the first place, before they are proven guilty or have a full finding of the facts.

Wehry agreed that the law is troubling and the process imperfect.

“That is what we do sort of because we don’t know what else to do. And so what it ends up doing is committing people to a sometimes lifetime of custody,” she said.

Batra said in his research, he learned TBI screening has been done very poorly across the country. Assessing the risk of a person to reoffend is also difficult and imprecise, he said, and can lead to overly long commitments.

Several states indefinitely commit people with TBI who are found incompetent to stand trial to mental hospitals, some of which have forensic or specialized rehabilitation units, Batra said.

Vermont hospitals aren’t set up to treat TBI, he said. But a year of data-gathering would give the state time to determine what type of program to create for people with TBI. DAIL already has an 80-person TBI program but it does not receive referrals through the court, she said.

Rep. Andy Donaghy, R-Poultney, asked whether TBI patients deemed incompetent to stand trial can be restored to competency so they could stand trial later.

Wehry said it depends on the person. The legal definition of competency involves the person’s being able to participate in his or her own defense.

“If you have a severe enough TBI to really not even be competent to stand trial, I’m not sure that we know enough yet (about) who they are to say they would respond to treatment,” Wehry said.

Batra later added that in many cases, charges are dropped.

Laura Krantz

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