concurs, dissenting.
I think this robbery conviction must be reversed for new trial, for the reasons stated in my dissent from this court’s, recent opinion in Whalem v. United States, 120 U.S.App.D.C. 331, 346 F.2d 812, decided April 23, 1965. No indication appears in the record that the question of competency, raised by defense counsel’s motion for mental examination, was ever judicially resolved. Here, as in Whalem, psychiatric opinion on the issue was expressed in the most conclusory boiler-plate language. Thus the record was fatally deficient for the required judicial assessment of competency. The absence of any judicial inquiry on the competency issue in these circumstances amounts to an abuse of discretion, and Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), requires a new trial. This disposition would settle as well the Jackson v. Denno point, on *202which the Government has commendably confessed error.
Here, as in Whalem, there are special circumstances which required inquiry into competency even assuming a report of the type here submitted could in some cases be sufficient. The crimes with which appellant was charged occurred while he was a patient at St. Elizabeths Hospital.1 Two years earlier, lie had been committed to the Hospital by court order pursuant to D.C.Code § 24-301(d), following acquittal by reason of insanity on similar charges. I think the presumption of continuing insanity raised by prior civil commitment in Whalem, and relevant in my view to the competency issue, is also present here. Although the standards for deciding competency to stand trial and criminal responsibility are different — an acquittal by reason of insanity is not an adjudication either of incompetency or of insanity — the legislative history of § 24-301 reveals that the rationale of mandatory commitment is a presumption of continuing insanity:
Where accused has pleaded insanity as a defense to a crime, and the jury has found that the defendant was, in fact, insane at the time the crime was committed, it is just and reasonable in the Committee’s opinion that the insanity, once established, should be presumed to continue and that the accused should automatically be confined for treatment until it can be shown that he has recovered.2
Thus the original commitment based on enough evidence to establish an insanity defense, and the continued confinement *203together Taise at least sufficient doubt concerning Green’s mental condition to have required an informed judicial determination of competency to be made before trial.3
. I agree with the majority that, to bring appellant to trial, the Government should have obtained a judicial order for his temporary release. St. Elizabeths has no discretion to release, without judicial authorization, patients committed pursuant to D.C.Code § 24-301 (d). See Hough v. United States, 106 U.S.App.D.C. 192, 196, 271 F.2d 458, 462 (1959). In my view, however, the order ordinarily ought not to be for a conditional or unconditional release pursuant to § 301(e). It would be a remarkable coincidence if the improvement justifying release occurred exactly when the patient engaged in further unlawful conduct. It might therefore be appropriate for the Government to apply to the District Court for a writ of habeas corpus ad prosequendum, pursuant to 28 U.S.C. § 2241(c) (5), to obtain at least temporary custody. See Carbo v. United States, 364 U.S. 611, 615, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961).
Although ordinarily employed to allow prosecution on federal criminal charges of a prisoner incarcerated in State prison, see, e.g., United States ex rel. Moses v. Kipp, 232 F.2d 147 (7th Cir. 1956); Yodock v. United States, 101 F.Supp. 480 (M.D.Pa.1951), affirmed, 196 F.2d 1018 (3d Cir. 1952), this writ is also available to seek the release for trial of one who is legally committed to a mental hospital, Ashley v. Pescor, 147 F.2d 318, 321 (8th Cir. 1945); cf. Mabry v. Hoye, 124 Miss. 144, 87 So. 4 (1921). This suggested procedure would be useful for reviewing the Government’s decision to prosecute rather than continue the accused’s confinement in hospital until he is without mental disorder and no longer dangerous. Issuance of the writ of habeas corpus ad prosequendum, like issuance of the writ of habeas corpus ad testificandum, is within the discretion of the court. See In re Thaw, 166 F. 71 (3d Cir. 1908); cf. Mabry v. Hoye, supra. Such decisions should be reviewable because they involve issues of public policy affecting the medical care and treatment of the individual, public safety, and the operation and consistency of our laws pertaining to mental disorder. But whether the Government chooses to adopt the .procedure outlined here, to decline prosecution, or to follow some other course, proper administration of the criminal law requires that respect and effect be given to prior judicial orders of commitment.
. Emphasis supplied. S.Rep.No. 1170. 84th Cong.. 1st Sess. 13 (1955); H.R.Rep. No. 892, 84th Cong., 1st Sess. 13 (1955), quoted in Lynch v. Overholser, 369 U.S. 705, 717, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962). The “Committee” to which the quotation refers was established by the Council on Law Enforcement in the District of Columbia to inquire into “the substantive and procedural law of the District of Columbia bearing on mental disorders as a defense in a criminal prosecution.” Both congressional reports adopted the report of the Committee. And see Orencia v. Overholser, 82 U.S.App.D.C. 285, 287, 163 F.2d 763, 765 (1947); Barry v. White, 62 App.D.C. 69, 64 F.2d 707 (1933).
. While appellant was serving sentence in this case, he was recommitted to St. Elizabeths Hospital, this time by prison officials acting pursuant to D.C.Code § 24-302. While this may not be relevant to appellant’s competency at trial, it hardly quiets my doubts on the issue,