Island County is joining with other counties in a planned lawsuit against the state Department of Social and Health Services for shirking the responsibility of treating and housing people who have committed felony crimes but are too gravely mentally ill to stand trial.

Last week, Island County Prosecutor Greg Banks presented the county commissioners with a resolution authorizing the lawsuit against the department to comply with the state law, RCW 10.77.086(7), as well as court orders. The Washington State Association of Counties and King County are leading the litigation.

The counties contend that the Department of Social and Health Services, commonly known as DSHS, is refusing to adhere to state law and trying to pass on its responsibilities to the counties.

The commissioners unanimously approved the resolution.

“To release individuals back into local communities without resources and tools is unsafe for the population and unsafe for that individual,” Commissioner Jill Johnson said, adding that it is incumbent on local government bodies to work together and hold the state to its responsibilities.

DSHS officials did not return a request for comment. A DSHS official previously told the News-Times that a dramatic increase in referrals for treatment, a lack of bed space and a shortage of nurses and health care workers complicates the agency’s ability to comply with rules regarding competency treatment while the state works to build new facilities.

Banks explained to the commissioners that, under the law, people charged with a crime must be mentally competent to stand trial. Legally, that means they must have an awareness of the charges and be able to assist their attorneys in defending themselves.

If a defendant isn’t competent, the court sends them to a mental health treatment facility to be restored, often with medication. DSHS is responsible for competency evaluations and restorations, usually at Western State Hospital.

Sometimes the doctors or psychiatric experts treating a defendant decide that a defendant, after several 90-day stays, cannot be restored to competency.

“This population that we are talking about are really the most concerning from a public safety perspective,” Banks said, “because they are people that are charged with serious crimes but are so mentally either ill or injured that they aren’t even at a level that they can understand court proceedings.”

After doctors decide a defendant can’t be restored, then the felony case against him or her has to be dismissed. The jail would have to release the person except for a “safety valve” written into state law, the prosecutor explained.

Under the law, a defendant who cannot be restored to competency is supposed to be committed to the custody of DSHS for purposes of a civil commitment, which means a person who is gravely mentally ill will be confined to a facility for treatment, the prosecutor said.

“Sometimes they are released under supervision of doctors,” Bank said. “Sometimes they are institutionalized for many years.”

DSHS officials said they will no longer “perform that mandatory, statuary duty” of filing civil commitment proceedings in cases with defendants accused of felonies who can’t be restored to competency, Banks said.

As a result, the people would be released into the county.

“We think that’s a bad idea,” he said.

DSHS will likely argue that the county can try to do its own civil commitment, Banks said, but the county doesn’t have the facilities or the doctors necessary.

The issue is separate but related to the Trueblood vs. DSHS lawsuit, which was a constitutional challenge over people being held in jails for long periods awaiting court-ordered mental health assessments. The court ordered DSHS to provide competency evaluations and restorations in a timely manner.

DSHS’s failure to follow the court order has resulted in giant fines. In July, a judge ordered the agency to pay a $100 million fine. In addition, the case has generated related litigation.

In February, the Island County Sheriff’s Office filed a motion for limited intervention in the felony case against Oak Harbor resident Ryan Hickey, who was accused of violating a no-contact order. DSHS’s failure to comply with a court order for competency restoration treatment resulted in Hickey being held in jail for six months without treatment.

“Housing untreated mentally ill defendants in custody for extended periods of time exacerbates mental illness symptoms, causes disruption, increases the risk of violence, self-harm and victimization and endangers staff and inmates,” the motion states, explaining that the cost of holding Hickey since the court-ordered deadline was nearly $40,000.

DSHS found a bed for Hickey not long after the motion was filed.