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Legislator argues State Hospital patients should have a hearing before transfer to prison

February 14, 2017 GMT

HELENA — Undeterred by Gov. Steve Bullock’s veto two years ago, Sen. Roger Webb introduced a bill Monday that would require a hearing before a patient found “guilty but mentally ill” can be transferred from the Montana State Hospital to the State Prison.

The three-term Republican argued that the current transfer procedure – which involves a review board composed of state employees and does not grant the patient any representation or notice – is a violation of due process rights and undermines the intent of judges who sentence convicts to intensive treatment only found at the hospital.

“All we’re asking for is an independent review board. Absolutely I don’t want just folks employed by (the Department of Public Health and Human Services), which is kinda like the fox watching the hen house,” he said. “This is about accountability. And it gives the individual a fighting chance at his own civil rights.”

Supporters included Disability Rights Montana, the National Alliance on Mental Illness of Montana, a father whose son at the state hospital was threatened with transfer to the state prison, and former judge Nels Swandal, a Republican senator from Wilsall.

“What we’re most concerned about as judges is making sure the individual who is guilty but mentally ill is taken care of. Most of the time it’s not their fault what happens,” he said. “They don’t belong in prison. They can’t get along (in general population) and end up in solitary confinement…All this bill does is make the Department prove before they transfer somebody that it’s in their best interest.”

Webb’s measure is similar to one he carried in 2015. It passed the Senate, 45-5, and the House, 97-1, but was vetoed by Bullock. A mail vote to override the veto failed to reach the necessary two-thirds approval, falling short 16 votes in the House and 6 votes in the Senate.

In a May 2015 veto letter, Bullock wrote the bill would create “an additional and costly taxpayer-funded hearing to second guess the recommendations of the inmate treating professionals. It gives GBMI inmates special rights after they have already received full due process of law when they were found guilty, sentenced and had the right to appeal.”

His letter also noted overcrowding at the forensic unit of the state hospital and called the transfer process “rare.”

In the last five years, 26 people have been transferred from the state hospital to the state prison and only two have been transferred back, Webb, DPHHS officials and others testified.

Bullock Communications Director Ronja Abel said in a written statement that Bullock is monitoring the bill, but declined to say whether he intended to veto it this year.

“The Governor continues to have concerns about the potential cost to taxpayers resulting from the bill, the failure to recognize the recommendations of treatment professionals, and the safety of staff and patients,” she said.

DPHHS Administrator Zoe Barnard, who oversees the division that includes the state hospital, read testimony that, in many places, matched the governor’s veto letter word-for-word.

“Again, this is a clinical review with clinicians,” she said. “The few instances of transfers from the prison back to the state hospital is an indication the current system results in placements that are legal, fair and based on the needs of the inmate.”

A few months after Bullock’s 2015 veto, Disability Rights Montana filed a lawsuit against the state that alleged four forensic patients were denied due process rights in the transfers. The case was dropped March 31.