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Your Guide to Commitment of Mentally Ill Individuals in Virginia

Reprinted with permission of Whitbeck & Associates, P.C.

FRONT COVER

ADVERTISING MATERIAL

Your Guide

to

Commitment of

Mentally Ill Individuals

in Virginia

Whitbeck & Associates, P.C. © 2006

ADVERTISING MATERIAL

INTRODUCTION

This Guide is meant to help a person understand the general rules and procedures of a proceeding to commit mentally ill persons in Virginia, specifically in Fairfax County.¹  The process for committing mentally ill persons in Virginia is a legal proceeding even though the hearings usually occur in a hospital, not a formal courtroom.  However, though the Virginia commitment process occurs outside the formal courtroom, the rules and laws that apply in court also apply in the commitment proceeding.

How the Process Begins

The process begins with someone contacting the police or the local area Community Services Board (usually called “Emergency Services”) to report an emergency with an allegedly mentally ill person.  In these situations either the police or a psychologist or other mental health professional responds to the call and comes directly to the individual to assess the situation.  If the situation is serious enough, the mental health professional evaluates the allegedly mentally ill person.  If the individual exhibits serious signs of mental illness and is dangerous to themselves or others or unable to care for themselves, the mental health professional will immediately go to the local magistrate and request the magistrate issue a temporary detention order (“TDO”).  A TDO is a court order that gives the police the authority to take the individual into custody.  The individual is then transported to a hospital for a temporary period until a hearing can be held to determine whether or not the person is in need of inpatient psychiatric treatment.

The Commitment Hearing

Once a mentally ill individual is detained in a hospital, they are entitled to a hearing within 48 hours of the issuance of the TDO.  The hearing is conducted at a meeting room at INOVA Fairfax Hospital in Fairfax County beginning at 7:00 a.m.  Because the commitment hearing is just like any court case, there is a “plaintiff” and a “defendant,” which in the commitment hearing are called the petitioner and the respondent.  The petitioner is the spouse, family member, friend or other concerned individual that is trying to help the allegedly mentally ill person l receive treatment for their illness.  The respondent is the person who is alleged to be mentally ill and in need of inpatient or outpatient psychiatric

treatment.   At the hearing, a judge called a special justice presides over the proceeding.

In addition to the parties and the special justice, a psychologist called an independent evaluator examines the allegedly mentally ill person and certifies whether the individual meets the legal criteria for commitment to a hospital.  The examination is conducted the evening before the hearing, and the independent evaluator appears and testifies at the hearing. 

During the hearing, the allegedly mentally ill person has an attorney appointed by the court to represent him or her who acts as their advocate.  In other words, it is the role of the defense attorney to do their best to ensure that the individual is not committed to psychiatric treatment.  While the petitioner has the right to hire and bring an attorney to the hearing to represent him or her, no attorney is appointed to represent the petitioner.²

At the beginning of the hearing the special justice explains to the allegedly mentally ill person that they have certain rights under Virginia law.  Included in this explanation is an offer to the individual to be admitted to a psychiatric hospital for voluntary treatment.  If an allegedly mentally ill person volunteers for treatment they must agree to stay in a hospital for what amounts to a minimum of 5 days.  It is important to remember that the petitioner can object to the respondent volunteering for treatment by asking the special justice to allow them to present evidence that the respondent is not willing to accept psychiatric treatment or is not capable of making the decision.  While the special justice will usually let the person volunteer over the petitioner’s objection, if the petitioner can show that the allegedly mentally ill individual has left psychiatric treatment against medical advice in the past, the petitioner’s objection to voluntary treatment usually has a better chance of preventing the person from volunteering

During the hearing the petitioner presents evidence to try to prove that the mentally ill individual needs hospitalization due to their mental illness.  This evidence can be in the form of witness testimony, photographs, diaries, journals or other writings, tape recordings or any other relevant item.  This evidence can be presented by the petitioner’s attorney if he/she has one, or by the petitioner without an attorney.  After the petitioner and any witnesses testify, the independent evaluator testifies and gives a diagnosis as to the mental illness the respondent suffers from.  The independent evaluator also certifies that the respondent meets the criteria for legal commitment.  In order to meet the legal criteria for commitment, the respondent must be an imminent danger to himself/herself, an imminent danger to others, or substantially unable to care for himself/herself due to mental illness. There also must be no less restrictive alternative to hospitalization to treat the respondent.

In order for the special justice to commit the respondent to inpatient treatment, the special justice must find by clear and convincing evidence that the respondent meets the legal criteria for commitment.  The special justice must also make a finding that there is no less restrictive alternative to hospitalization such as outpatient counseling and/or medication.  If the special justice makes the finding, he/she can commit the mentally ill individual for up to 180 days.

After the Hearing

Once the respondent is committed, they are required to remain in the hospital for up to 180 days.  Because the commitment is “up to” 180 days, they can be released prior to the expiration of this period, and usually are.  It is the decision of the physician treating the respondent when they are released.  Also, just because the respondent is committed does not mean they are automatically administered medication to treat their mental illness.  If the respondent refuses medication, a separate hearing must be held and the special justice must order that the respondent be medicated against their will.  The respondent also has the right to appeal the decision of the special justice to the Circuit Court within 30 days of their commitment.  If this occurs, the commitment process starts over and a hearing is held in an actual court room in front of a judge or a jury.  During the period leading up to the hearing the respondent remains in the hospital receiving psychiatric treatment.

Important Terms to Remember

Community Services Board:  The local city or county agency that receives emergency calls related to allegedly mentally ill persons, evaluates the individuals, and requests a temporary detention order be issued by a magistrate to begin commitment proceedings.

Psychologist or Other Mental Health Professional:  Usually the local community services board will send a psychologist or licensed clinical social worker to evaluate the allegedly mentally ill person when a concerned person contacts them with an emergency situation.  

Magistrate:  The judicial officer who issues temporary detention orders if he/she finds that there is probably cause to believe that the allegedly mentally ill person meets the criteria for commitment.

Temporary Detention Order:  The document that gives the police or local community services board the authority to detain the allegedly mentally ill person in a hospital pending a hearing.  If a hearing is not heard within 48 hours of the temporary detention order being issued and served on the allegedly mentally ill person, the temporary detention order is dismissed and the individual is released from the hospital.

Petitioner:  The spouse, family member, friend or other concerned individual that is trying to help the allegedly mentally ill person receive treatment for their illness.  Serves as the “plaintiff” in the commitment proceeding, and instead of suing the respondent or “defendant” for money damages, is suing to get the respondent mental health treatment.

Respondent:  The allegedly mentally ill person who is the subject of the commitment proceeding. 

Independent Evaluator:  The psychiatrist, psychologist, or other mental health professional licensed to make diagnoses of mental illness, who is appointed during the commitment proceeding to give a certification as to whether the respondent meets the criteria for commitment.

Special Justice:  The judicial officer, usually an attorney serving in a special capacity, that serves as the judge for the commitment proceeding.  The special justice makes the decision whether or not the respondent meets the criteria for commitment.

Voluntary Treatment:  Prior to being subjected to a commitment proceeding, the respondent is given the choice to volunteer for treatment.  If the respondent volunteers, and is found to be willing to accept psychiatric treatment and is capable of making the decision to volunteer despite their mental illness by the independent evaluator, the respondent will be forced to remain in the hospital for what amounts to 5 days. 

Imminent Danger to Himself/Herself:  One of the possible criteria for commitment, and possibly the most difficult to prove.  Usually evidence that support commitment under these criteria is related to threats by the allegedly mentally ill person of suicide or actual suicide attempts.  Can also be proven by evidence showing actions that hurt ones self such as walking in extreme cold without clothing, wandering busy streets, or taking extreme risks.

Imminent Danger to Others:  These criteria for commitment is usually proven by evidence showing the allegedly mentally ill person has physically assaulted or attacked another person or has threatened to do so after having a history of violence. 

Substantially Unable to Care for Himself/Herself Due to Mental Illness:  Another criteria for commitment.  Usually evidence that a person is substantially unable to care for himself/herself due to mental illness is proven by evidence showing the person is not eating appropriately, is severely sleep deprived, or whose residence or environment is extremely unsanitary.  It is important to remember that the evidence must be substantial and that simply showing the person cannot afford to live on their own, is homeless or unable manage their finances is usually not an adequate basis for commitment.

Less Restrictive Alternative to Hospitalization:  In order to commit a person, the special justice must find that there is no less restrictive alternative to inpatient hospitalization of the allegedly mentally ill person, and that alternatives to inpatient treatment have been explored and deemed unsuitable.  This is usually proven by asking the independent evaluator whether other forms of treatment are suitable in lieu of inpatient treatment and having the independent evaluator give an opinion on this issue.  It may also be proven by another witness providing testimony that the allegedly mentally ill individual has had outpatient treatment before and failed to follow through with the same.

Clear and Convincing Evidence:  This is the legal standard of proof in commitment cases.  In most civil cases, the standard of proof is “by a preponderance of the evidence” which generally means that it is more likely than not that the incident or issue trying to be proven occurred.  In criminal cases the standard is much higher, as proof is required “beyond a reasonable doubt” that the criminal act occurred.  While the commitment proceeding is a civil case, clear and convincing evidence is a higher standard of proof than by a preponderance of the evidence, but is also a lower standard of proof than beyond a reasonable doubt.

Inpatient Treatment:  If a patient is committed to inpatient treatment they are forced into treatment at a hospital determined by the Community Services Board for up to 180 days.  During this time they are court-ordered to remain inside the hospital and cannot leave under any circumstances unless a physician releases them.

Important Tips for Petitioners and Witnesses

• Remember, though the commitment hearing is conducted in a conference room at the hospital, it is still a legal proceeding and all the same rules of any other court hearing apply, including the rules of evidence, the practices and procedures of Virginia courts, and Virginia statutes and caselaw.

• The petitioner should bring the following items with him or her when they come to the hearing if they have them:  documents showing the allegedly mentally ill person’s psychiatric history, photographs taken of the scene where any incident occurred or showing the condition of the person’s residence (or any other relevant photos), journals or diaries written by the allegedly mentally ill person or pictures they have drawn, recordings (video, audio or otherwise) of the statements or actions of the person, any other tangible item that tends to show the person is mentally ill.  When doubt, bring it.

• The petitioner should try to convince an allegedly mentally ill person’s psychiatrist, psychologist or therapist to attend the hearing if possible.  Such a professional is extremely helpful to proving the person is mentally ill, and can assist the independent evaluator in making a certification.

• The petitioner has a right to an attorney at the hearing.  Because the allegedly mentally ill person has an attorney appointed to represent them the petitioner will be at a disadvantage.  From late August to early December and from early January to early May of each year, the

• George Mason Mental Illness Clinic provides free legal services to petitioners Monday through Thursday and represents the petitioners at the hearings should the petitioner choose to engage the Clinic’s services.  At all other times, the petitioner has the right to hire their own attorney.

• The petitioner should bring as many witnesses as he or she can to the hearing that can provide relevant information.

• The petitioner should arrive early to the hearing to make sure he or she has enough time to talk to the independent evaluator and to share information with them.  The hearings start promptly at 7:00 a.m. so the petitioner should not be late.

• The petitioner should talk to the allegedly mentally ill person before the commitment hearing and try to get them to admit that they committed the acts that lead to the commitment hearing taking place.  Any statements by the person are admissible and are not hearsay as is discussed below.

Important Tips Regarding Evidence

Because the hearing is a legal proceeding the petitioner must remember that the rules of evidence apply.  While Virginia does not have written “Rules” of evidence that a petitioner can review prior to the hearing, Virginia has developed principles of evidence through court decisions that apply to commitment hearings, and are important to understand.

• Hearsay:  An out of court statement or writing offered to prove the truth of the matter asserted.  Hearsay is not admissible generally, however, there are several exceptions to the hearsay rule.  A good example of hearsay in a commitment hearing is where a witness testifies as to something someone told them outside the commitment hearing, but the person is not present to testify.  This statement would not be allowed into evidence at the commitment hearing unless it fell under a hearsay exception.  One important exception is statements of the allegedly mentally person.  If they are offered into evidence by the petitioner or his or her witnesses, then such a statement is admissible.

• Relevant Evidence:  Only relevant evidence is admissible in the hearing.  Relevant evidence is anything that tends to prove or disprove a fact that is at issue in the commitment hearing.  An important tip to remember is that relevance has a special meaning in cases where the criteria for commitment is imminent danger to self or imminent danger to others.  If the independent evaluator certifies that the person is an imminent danger to himself/herself or an imminent danger to others, it is important to remember that the requirement that the danger be imminent limits what evidence is relevant.  Usually, the actions of the person offered as evidence to prove the person is an imminent danger to self or other, is going to be objected to by the person’s attorney as irrelevant if the evidence concerns incidents or issues that did not occur in the last few weeks.

• Opinion:  While the petitioner and his/her witnesses can give some lay opinions while testifying, the petitioner and his/her witnesses cannot give an opinion whether or not the allegedly mentally ill person actually suffers from a mental illness, as they are not qualified as an expert.  Only the independent evaluator can render an opinion as to whether the person is mentally ill. 

Conclusion

Though this brochure is meant to be an aide to a petitioner or witness in a commitment proceeding, this brochure is by no means exhaustive, and there are numerous issues that are not discussed here that may come up during the proceeding.  The petitioner should contact the George Mason Mental Illness Clinic or an attorney for further information on the commitment process.

FOR MORE INFORMATION CONTACT THE GEORGE MASON MENTAL ILLNESS CLINIC AT (703) 477-8476.

Other important phone numbers:

• 24-Hour Fairfax County Community Services Board Emergency Services (703)-573-5679
• National Alliance for the Mentally Ill (703) 524-7600
• Treatment Advocacy Center (703) 294-6001
• George Mason Law School (703) 993-8000

1  This Guide deals with the process for adults only.  For more information on commitment of mentally ill children or teenagers, use the contact numbers referenced on the back of this Guide.

2  For more information on free legal representation for petitioners at commitment hearings or for information on attorneys for hire that practice mental illness law, contact the George Mason Mental Illness Clinic at (703) 477-8476.