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2007 SESSION
061204720Be it enacted by the General Assembly of Virginia:
1. That §§ 19.2-169.6, 19.2-176 and 19.2-177.1 of the Code of Virginia are amended and reenacted as follows:
§ 19.2-169.6. Emergency treatment prior to trial.
A. Any defendant who is not subject to the provisions of § 19.2-169.2 may be hospitalized for psychiatric treatment prior to trial if:
1. The After obtaining a preadmission screening report from the community
services board or behavioral
health authority that serves the county or city where the person resides or, if
impractical, where the person is located, the
court with jurisdiction over the defendant's case finds clear and convincing
evidence that the defendant (i) is being properly detained in jail prior to
trial; (ii) has mental illness and is imminently dangerous to himself or others
or is so seriously mentally ill as to be substantially unable to care for himself in the
opinion of a qualified mental health professional; and (iii) has been provided
medical and psychiatric treatment but requires treatment in a
hospital rather than the jail in the opinion of a qualified mental health
professional; or
2. The person having custody over a defendant who is awaiting
trial has reasonable cause to believe that (i) the defendant has mental illness
and is imminently dangerous to himself or others or is so seriously
mentally ill as to be substantially unable to care for himself and
(ii) has been provided medical and psychiatric treatment
but requires treatment in a hospital rather than jail and the
person having such custody arranges for an in-person evaluation
of the defendant by a person skilled in
the diagnosis and treatment of mental illness an
employee or designee of
the local community services board as defined in §
37.2-809, provided a district court judge or a special justice, as
defined in § 37.2-100 or, if a judge or special justice is not available, a
magistrate, upon the advice of a person skilled in
the diagnosis and treatment of mental illness an employee or
designee of the community services board, subsequently issues a
temporary detention order for treatment in accordance with the procedures
specified in §§ 37.2-809 through 37.2-813. In no event shall the defendant have
the right to make application for voluntary admission and treatment as may be
otherwise provided in § 37.2-805 or 37.2-814.
If the defendant is committed pursuant to subdivision 1 of this subsection, the attorney for the defendant shall be notified that the court is considering hospitalizing the defendant for psychiatric treatment and shall have the opportunity to challenge the findings of the qualified mental health professional. If the defendant is detained pursuant to subdivision 2 of this subsection, the court having jurisdiction over the defendant's case and the attorney for the defendant shall be given notice prior to the detention pursuant to a temporary detention order or as soon thereafter as is reasonable. Upon detention pursuant to subdivision 2 of this subsection, a hearing shall be held, upon notice to the attorney for the defendant, either (i) before the court having jurisdiction over the defendant's case or (ii) before a district court judge or a special justice, as defined in § 37.2-100, in accordance with the provisions of § 37.2-820, in which case the defendant shall be represented by counsel as specified in § 37.2-814; the hearing shall be held within 48 hours of execution of the temporary order to allow the court that hears the case to make the findings, based upon clear and convincing evidence, that are specified in subdivision 1 of this subsection. If the 48-hour period herein specified terminates on a Saturday, Sunday, or legal holiday, the person may be detained for the same period allowed for detention pursuant to a temporary detention order issued pursuant to §§ 37.2-809 through 37.2-813.
In any case in which the defendant is hospitalized pursuant to this section, the court having jurisdiction over the defendant's case may provide by order that the admitting hospital evaluate the defendant's competency to stand trial and his mental state at the time of the offense pursuant to §§ 19.2-169.1 and 19.2-169.5.
B. A defendant subject to this section shall be treated at a hospital designated by the Commissioner as appropriate for treatment and evaluation of persons under criminal charge. The director of the hospital shall, within 30 days of the defendant's admission, send a report to the court with jurisdiction over the defendant addressing the defendant's continued need for treatment for a mental illness and being imminently dangerous to himself or others or substantially unable to care for himself and, if so ordered by the court, the defendant's competency to stand trial, pursuant to subsection D of § 19.2-169.1, and his mental state at the time of the offense, pursuant to subsection D of § 19.2-169.5. Based on this report, the court shall (i) find the defendant incompetent to stand trial pursuant to subsection E of § 19.2-169.1 and proceed accordingly, (ii) order that the defendant be discharged from custody pending trial, (iii) order that the defendant be returned to jail pending trial, or (iv) make other appropriate disposition, including dismissal of charges and release of the defendant.
C. A defendant may not be hospitalized longer than 30 days under this section unless the court which has criminal jurisdiction over him or a district court judge or a special justice, as defined in § 37.2-100, holds a hearing at which the defendant shall be represented by an attorney and finds clear and convincing evidence that the defendant continues to (i) have a mental illness, (ii) be imminently dangerous to himself or others or so seriously mentally ill as to be substantially unable to care for himself, and (iii) be in need of psychiatric treatment in a hospital. Hospitalization may be extended in this manner for periods of 60 days, but in no event may such hospitalization be continued beyond trial, nor shall such hospitalization act to delay trial, so long as the defendant remains competent to stand trial.
§ 19.2-176. Determination of insanity after conviction but before sentence; hearing.
A. If, after conviction and before sentence of any person, the
judge presiding at the trial finds reasonable ground to question such person's
mental state, he may order an evaluation of such person's mental state by at
least one psychiatrist or clinical psychologist who is qualified by training
and experience to perform such evaluations. If the judge, based on the evaluation,
and after obtaining a preadmission screening report from the
community services board or behavioral health authority that serves the county
or city where the person resides or, if impractical, where the person is
located and hearing representations of the defendant's counsel,
finds clear and convincing evidence that the defendant (i) is
mentally ill has mental illness, and
(ii) is imminently dangerous to himself or others or is
so seriously mentally ill as to be substantially unable to care for himself and (iii) has been provided medical and psychiatric treatment but requires
treatment in a mental hospital rather than the jail, he may order the defendant
hospitalized in a facility designated by the Commissioner as appropriate for
treatment of persons convicted of crime. The time such person is confined to
such hospital shall be deducted from any term for which he may be sentenced to
any penal institution, reformatory or elsewhere.
B. If , after obtaining an in-person evaluation of the
defendant by an employee or designee of the local community services board as
defined in § 37.2-809, it appears from all evidence readily
available that the defendant is mentally ill and (i)
has mental illness, and (ii) poses an imminent danger to himself
or others if not immediately hospitalized or is so seriously
mentally ill as to be substantially unable to care for himself, and
(iii) has been provided medical and psychiatric treatment but requires
treatment in a mental hospital rather than the jail, a temporary
order of detention may be issued in accordance with subdivision A 2 of §
19.2-169.6 and a hearing shall be conducted in accordance with subsections A
and C within forty-eight
48 hours of execution of the temporary
order of detention, or if the forty-eight 48-hour
period herein specified terminates on a Saturday, Sunday or legal holiday, such
person may be detained for the same period allowed for detention pursuant to an
order for temporary detention issued pursuant to §§ 37.2-809 through 37.2-813.
C. A defendant may not be hospitalized longer than thirty 30
days under this section unless the court which has criminal jurisdiction over
him, or a court designated by such court, holds a hearing, at which the
defendant shall be represented by an attorney, and finds clear and convincing
evidence that the defendant continues to be
(i) mentally ill have mental illness, (ii) be imminently
dangerous to self himself
or others or so seriously mentally ill as to be
substantially unable to care for himself, and (iii) be in
need of psychiatric treatment in a hospital. Hospitalization may be extended in
this manner for periods of 180 days, but in no event may such hospitalization
be continued beyond the date upon which his sentence would have expired had he
received the maximum sentence for the crime charged.
§ 19.2-177.1. Determination of mental illness after sentencing; hearing.
A person convicted of a crime who is in the custody of a local
correctional facility after sentencing may be the subject of a commitment
hearing for involuntary admission in accordance with the procedures provided in
Chapter 8 (§ 37.2-800 et seq.) of Title 37.2. Such hearing shall be commenced
upon petition of the person having custody over the prisoner. If the person
having custody over the prisoner has reasonable cause to believe that (i) the
prisoner has mental illness and is imminently dangerous to himself or others or
is so seriously mentally ill as to be substantially unable to care for himself
and (ii) has been provided medical and psychiatric treatment
but requires treatment in a hospital rather than a local
correctional facility and the person having such custody arranges for an
evaluation of the prisoner by a person skilled in the diagnosis and treatment of
mental illness an employee or designee of the local community
services board as defined in § 37.2-809, then a district court
judge or a special justice, as defined in § 37.2-100 or, if a judge is not
available, a magistrate, upon the advice of a
person skilled in the diagnosis and treatment of mental illness an
employee or designee of the community services board,
may issue a temporary detention order for treatment in accordance with the
procedures specified in subdivision A 2 of § 19.2-169.6.
In all other respects, the involuntary admission procedures specified in Chapter 8 of Title 37.2 shall be applicable, except:
1. Any involuntary admission shall be only to a facility designated for this purpose by the Commissioner;
2. In no event shall the prisoner have the right to make application for voluntary admission and treatment as may be otherwise provided in § 37.2-805 or 37.2-814;
3. The time that such prisoner is confined to a hospital shall be deducted from any term for which he may be sentenced, but in no event may such hospitalization be continued beyond the date upon which his sentence would have expired;
4. Any prisoner hospitalized pursuant to this section who has not completed service of his sentence upon discharge from the hospital shall serve the remainder of his sentence.