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ANALYSIS OF VIRGINIA'S ASSISTED TREATMENT LAWS

Analysis Completed: JDS 2007

When not the subject of a pending commitment action, what are the prerequisites for an individual to receive voluntary treatment?

§ 37.2-805 Voluntary admission - screening by the community services board or by a physician on the staff of the state facility, and; deemed to be in need of treatment, training or habilitation. 

Conditions necessary for emergency treatment/observation.

§ 37.2-808 Emergency Custody Order – probable cause to believe that the person is mentally ill and in need of hospitalization and that the person presents an imminent danger to self or others as a result of mental illness, or is so seriously mentally ill as to be substantially unable to care for self; incapable of volunteering or unwilling to volunteer for treatment;

§ 37.2-809 Temporary Detention Order – after an in-person evaluation by an employee of the local community services board or its designee who is skilled in the assessment and treatment of mental illness; if it appears from all evidence readily available, that that the person (i) has mental illness, (ii) presents an imminent danger to himself or others as a result of mental illness or is so seriously mentally ill as to be substantially unable to care for himself, (iii) is in need of hospitalization or treatment, and (iv) is unwilling to volunteer or incapable of volunteering for hospitalization or treatment.

A magistrate may issue a temporary detention order without a prior in-person evaluation if (i) the person has been personally examined within the previous 72 hours by an employee or a designee of the local community services board or (ii) there is a significant physical, psychological, or medical risk to the person or to others associated with conducting such evaluation.

Is mental illness/disorder defined?

§37.2-100 "Mental illness" means a disorder of thought, mood, emotion, perception, or orientation that significantly impairs judgment, behavior, capacity to recognize reality, or ability to address basic life necessities and requires care and treatment for the health, safety, or recovery of the individual or for the safety of others.

Maximum duration of emergency treatment/observation before a judicial hearing must be held.

§ 37.2-808 Emergency Custody Order – period of custody shall not exceed four hours. 

§ 37.2-809 Temporary Detention Order – shall not exceed 48 hours prior to a hearing. If the 48-hour period herein specified terminates on a Saturday, Sunday, or legal holiday, the person may be detained, as herein provided, until the next day that is not a Saturday, Sunday, or legal holiday.

Can a potential committee avoid a hearing determination by opting to voluntarily undergo treatment and, if so, what is the minimum time he or she must then spend in treatment?

§ 37.2-814 Yes, at the commencement of the commitment hearing, the district court judge or special justice shall inform the person of his right to apply for voluntary admission and treatment and shall afford the person an opportunity for voluntary admission. The judge shall ascertain if the person is then willing and capable of seeking voluntary admission and treatment.

The judge or special justice shall require him to accept voluntary admission for a minimum period of treatment not to exceed 72 hours. After such minimum period of treatment, the person shall give the hospital 48 hours' notice prior to leaving the hospital.

Are there any requirements that a potential committee be capable of deciding to voluntarily undergo treatment?

§ 37.2-814 Yes, the judge must find that the person is capable and willingly accepts voluntary admission and treatment. 

Who may petition for an individual to receive assisted inpatient treatment?

§ 37.2-809 Any responsible person or upon the magistrates own motion.

Required elements of a petition.

Not specified statutorily.

Is there a penalty for filing an unfounded petition?

§ 37.2-431 Any person who knowingly and maliciously contrives or conspires to obtain without reasonable cause the admission of any person to any hospital or training center is guilty of a Class 1 misdemeanor.

Participation of other individuals in assisted treatment hearing.

§ 37.2-814 Petitioner is entitled and encouraged to testify; no provisions regarding other individuals or family members.

Length of initial term of assisted inpatient treatment.

§ 37.2-817 May not exceed 180 days from the date of the court order.

Conditions necessary for judicially ordered inpatient treatment (exact wording of key portions of applicable statute desired).

§ 37.2-817 [I]f the judge or special justice finds by clear and convincing evidence that (i) the person presents an imminent danger to himself or others as a result of mental illness or has been proven to be so seriously mentally ill as to be substantially unable to care for himself and (ii) alternatives to involuntary inpatient treatment have been investigated and deemed unsuitable and there is no less restrictive alternative to involuntary inpatient treatment.

Evidentiary standard under which eligibility of assisted treatment is judged (two most common are "beyond a reasonable doubt" and "clear and convincing evidence").

§ 37.2-817 Clear and convincing evidence.

Is there a least restrictive treatment requirement?

§ 37.2-400(A)(6) Each person admitted to a hospital, training center, other facility, or program operated, funded, or licensed by the Department shall be treated under the least restrictive conditions consistent with his condition.

Is there a confidentiality exception for family members of committees and/or individuals undergoing emergency evaluations?

No.

Are advance directives or durable powers of attorney addressed and, if so, in what way?

Yes, see § 37.2-1000.

Is there a separate proceeding necessary to abrogate a committee’s right to refuse treatment?

§ 37.2-1101  An appropriate circuit court or district court judge or special justice may authorize treatment for a mental or physical disorder on behalf of an adult person, in accordance with this section, if it finds upon clear and convincing evidence that (i) the person is either incapable of making an informed decision on his own behalf or is incapable of communicating such a decision due to a physical or mental disorder and (ii) the proposed treatment is in the best interest of the person.

Does the treating hospital and/or physician have discretion to release individuals before the end of their assisted inpatient care periods.

§ 37.2-837 The director of a state hospital or training center may discharge, after the preparation of a discharge plan:

1. Any consumer in a state hospital who, in his judgment, (a) is recovered, (b) does not have a mental illness, or (c) is impaired or not recovered but whose discharge will not be detrimental to the public welfare or injurious to the consumer;

2. Any consumer in a state hospital who is not a proper case for treatment within the purview of this chapter; or

3. Any consumer in a training center who chooses to be discharged or, if the consumer lacks the mental capacity to choose, whose legally authorized representative chooses for him to be discharged. Pursuant to regulations of the Centers for Medicare & Medicaid Services and the Department of Medical Assistance Services, no consumer at a training center who is enrolled in Medicaid shall be discharged if the consumer or his legally authorized representative on his behalf chooses to continue receiving services in a training center.

Individual(s) who may decide to initiate new periods of assisted treatment.

§ 37.2-817 The person shall be released at the expiration of 180 days unless he is involuntarily admitted by further petition and order of a court.

Type of forum that decides on need for extended assisted treatment (normally either judicial or administrative).

No statutory authorization for extensions, additional periods of treatment occur by further petition. 

Participation of other individuals in the extension hearing (i.e. notice, a right to be heard and/or right to counsel for family members, legal guardians, doctors, etc.).

Not specified.

Maximum length of subsequent assisted inpatient treatment (and of any possible subsequent periods).

Not specified, further petition suggests that 180-day-period would apply.

Alternative(s) to inpatient treatment (i.e. conditional release, trial release, assisted outpatient treatment, etc.) and conditions necessary for a court to order placement in alternative(s) (if more than one form, specify for each).

§ 37.2-817  Involuntary outpatient treatment – if the judge or special justice finds by clear and convincing evidence that (i) the person presents an imminent danger to himself or others as a result of mental illness or has been proven to be so seriously mentally ill as to be substantially unable to care for himself, (ii) less restrictive alternatives to involuntary inpatient treatment have been investigated and are deemed suitable, (iii) the person (a) has the degree of competency necessary to understand the stipulations of his treatment, (b) expresses an interest in living in the community and agrees to abide by his treatment plan, and (c) is deemed to have the capacity to comply with the treatment plan, and (iv) the ordered treatment can be delivered on an outpatient basis and be monitored by the community services board, behavioral health authority or designated provider, the judge or special justice shall order outpatient treatment, which may include day treatment in a hospital, night treatment in a hospital, outpatient involuntary treatment with anti-psychotic medication pursuant to Chapter 11 (§ 37.2-1100 et seq.), or other appropriate course of treatment as may be necessary to meet the needs of the person.

Maximum duration of alternative(s) to assisted inpatient treatment.

Not specified.

Remedy if patient violates outpatient order.

§ 37.2-817 Upon failure of the person to adhere to the terms of the outpatient treatment order, the judge or special justice may revoke it and, upon notice to the person and after a commitment hearing, order involuntary admission to a facility.

Procedure necessary to transfer patient from inpatient to outpatient care.

Not specified.

Describe any procedures for conservatorship, guardianship, etc., which are applicable to the mentally ill.

See generally § 37.2-1000.

Other (may include insights into state’s mental health system, judicial interpretation of mental health code, or known movements for statutory reform).

Petitioners are not provided with legal representation by the Commonwealth.  Petitioners, however, are entitled to retain counsel at their own expense.

Any person involuntarily admitted has the right to appeal pursuant to § 37.2-821, but no provisions for appeals by petitioners are listed.

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