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2008 SESSION

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Senate Committee on Courts of Justice

Chairman: Henry L. Marsh III

Clerk: Angi Murphy
Staff: J. French, M. Felch, D. Cotter
Date of Meeting: January 28, 2008
Time and Place: 8:30 a.m., Senate Room A, General Assembly Building
REVISED -- IMMIGRATION BILLS MOVED TO TUESDAY

S.B. 16

Patron: Edwards

Crisis intervention pilot programs for persons with mental illness. Permits the Department of Criminal Justice Services to establish crisis intervention team pilot programs in areas of the state by January 1, 2009. The crisis intervention team pilot programs shall assist law-enforcement officers in responding to crisis situations involving persons with mental illness, substance abuse problems, or both. By November 1, 2008, the Department shall submit to the Joint Commission on Health Care a report outlining the plan for the program. The Department, in consultation with the Department of Mental Health, Mental Retardation and Substance Abuse Services, shall establish a training program for all persons involved in the crisis intervention team pilot programs. Each crisis intervention team shall develop a protocol that permits law-enforcement officers to release from custody persons whom they encounter in crisis situations when the crisis intervention team has determined the person is sufficiently stable. The Department shall evaluate and report annually to the Joint Commission on Health Care on the impact and effectiveness of the crisis intervention team pilot programs.

S.B. 18

Patron: Edwards

Mental health courts; pilot program. Directs the Office of the Executive Secretary of the Supreme Court to establish by January 1, 2009, no less than two and no more than five mental health courts in Virginia for nonviolent offenders with serious mental illnesses.

S.B. 65

Patron: Howell

Community criminal justice boards; membership. Adds a provider and consumer of mental health services to the membership of community criminal justice boards.

S.B. 66

Patron: Howell

Emergency custody; who may accept custody. Allows the location to which a person is transported pursuant to an emergency custody order to accept custody of the person where (i) the location is licensed to provide the level of security necessary to protect the person and others from harm, (ii) the location is actually able to provide the level of security necessary to protect the person and others from harm, and (iii) the location is willing to accept custody of the person.

S.B. 67

Patron: Howell

Parental admission of minors for inpatient treatment; minors incapable of giving consent. Provides that minors 14 years of age or older who are incapable of giving informed consent may be admitted to inpatient treatment upon the application of a parent. The bill also defines the term "incapable of giving informed consent."

S.B. 68

Patron: Howell

Involuntary commitment petition; withdrawal.  Makes clarifying change regarding service of a petition for involuntary commitment, replacing the term "dismissed" with "withdrawn," since a petition cannot be dismissed until after a hearing on the petition has been held.

S.B. 75

Patron: Cuccinelli

Community services board; attend all hearings. Requires that an employee of the community services board that prepared the preadmission screening report attend the involuntary commitment hearing. The bill provides that where in person attendance is not practicable, attendance may be by electronic means. Further it provides that where the hearing is held in the jurisdiction of another community services board, an employee of the community services board serving that jurisdiction may attend on behalf of the community services board that prepared the preadmission screening report.

S.B. 78

Patron: Cuccinelli

Examination by independent examiner; time frame.  Requires that the examination of a person who is the subject of an involuntary commitment hearing be completed within 48 hours of the execution of the temporary detention order but sufficiently in advance of the hearing so as to ensure sufficient time for a thorough examination. 

S.B. 79

Patron: Cuccinelli

Independent examiner, records to be reviewed.  Requires that the independent examiner review, at minimum, the medical records of the person who is the subject of an involuntary commitment hearing, the prescreening report, and any other relevant, readily accessible reports, records and evidence related to the person who is the subject of an involuntary commitment hearing, prior to conducting an examination. This bill also requires that the independent examiner certify at the hearing that he has reviewed the medical records of the person who is the subject of an involuntary commitment hearing, the prescreening report, and all other relevant, readily accessible reports, records and evidence related to the person who is the subject of the hearing.

S.B. 80

Patron: Cuccinelli

Involuntary commitment; electronic examination by independent examiner.  Requires that all examinations be conducted in person unless the examination cannot be completed within 48 hours of the issuance of the temporary detention order, in which case the examination may be made via electronic means.

S.B. 81

Patron: Cuccinelli

Emergency custody; who may accept custody.  Allows the location to which a person is transported pursuant to an emergency custody order to accept custody of the person where (i) the location is licensed to provide the level of security necessary to protect the person and others from harm, (ii) the location is actually able to provide the level of security necessary to protect the person and others from harm, and (iii) the location is willing to accept custody of the person.

S.B. 86

Patron: Cuccinelli

Involuntary commitment hearings; law students. Provides that it is not the unauthorized practice of law for a third-year law student enrolled at any law school in the Commonwealth to represent a petitioner in a commitment hearing for involuntary admission without the presence of a practicing attorney. The student must have completed coursework in evidence and trial advocacy and training. The student must inform the petitioner that he is not a licensed attorney, that he may not be compensated for his services, and that he can be held liable only for intentional malfeasance.

S.B. 96

Patron: Lucas

Involuntary commitment hearings; confidentiality of records. Clarifies that recordings of any involuntary commitment hearing shall be held by the clerk of the general district court where the hearing is held, and that all recordings and records of such hearings shall be confidential, unless such confidentiality is waived, in a signed writing, by the subject of such a hearing. The bill provides that the dispositional order of such hearing may be made available by court order, if such disclosure is in the best interest of the subject of the hearing or the public. The bill also directs the judge or special justice to order that copies of the relevant records of the person be released to (i) the facility in which he is placed; (ii) the community services board or behavioral health authority of the jurisdiction where the person resides or which is ordered to monitor any mandatory outpatient treatment order; (iii) any treatment providers identified in a treatment plan incorporated into any mandatory outpatient treatment order; and (iv) any other treatment providers or entities.

S.B. 97

Patron: Lucas

Mental health records; disclosure. Mandates disclosure of the subject of an involuntary commitment procedure's health records to any magistrate, court, mental health examiner, community services board or behavioral health authority, or law-enforcement officer involved in the proceeding, whether the proceeding involves a minor, a criminal defendant, or other individual.

S.B. 101

Patron: Cuccinelli

Emergency custody order; renewal.  Allows a single, four-hour extension of an emergency custody order upon a finding by a magistrate that good cause exists for such an extension.

S.B. 102

Patron: Cuccinelli


Three-tiered system of transportation.  Establishes a three-tiered system of transportation for persons under an emergency custody order, temporary detention order, or involuntary commitment order.

S.B. 103

Patron: Cuccinelli

Independent examiner's report; admissibility of written certification.  States that the written certification of an independent examiner shall be admissible, despite objections to its admissibility if the independent examiner is either present at the hearing in person or is electronically available.

S.B. 104

Patron: Cuccinelli

Outpatient treatment; compliance.  Provides that the community services board, behavioral health authority, or designated provider charged with monitoring a person's compliance with an involuntary outpatient treatment order shall report any material noncompliance with that order to the judge or special justice. Upon receipt of a report of material noncompliance, the judge or special justice shall issue a temporary detention order and then proceed to hold an involuntary commitment hearing, as a result of which the court may revoke outpatient treatment and order the person's involuntary commitment.

S.B. 106

Patron: Cuccinelli

Involuntary commitment criteria; outpatient treatment.  Changes the criteria for determining when outpatient treatment may be ordered for a person whose involuntary commitment is sought. The new criteria would be that the person has a mental illness and, as a result of that mental illness, (i) there is a substantial likelihood that in the near future he will cause serious physical harm to himself or another person as evidenced by recent behavior causing, attempting, or threatening such harm, (ii) there is a substantial likelihood that in the near future he will suffer serious harm due to substantial deterioration of his capacity to protect himself from such harm or to provide for his basic human needs, or (iii) he is unable to comprehend the nature of his illness or the need for treatment, is experiencing a substantial impairment of his judgment, reasoning, or behavior, and will, if not treated, suffer or continue to suffer a substantial deterioration in his previous ability to function in the community. Currently, the criteria for involuntarily committing a person to inpatient or outpatient treatment is the same.

S.B. 129

Patron: Cuccinelli

Involuntary commitment; criteria.  Changes the criteria for emergency custody orders, temporary detention orders, and involuntary commitment so that a person may be taken into emergency custody, placed under temporary detention, or involuntarily committed where it is found that (i) the person has a mental illness and (ii) there exists a substantial likelihood that, as a result of that mental illness, the person will, in the near future, (a) cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm or (b) suffer serious harm due to substantial deterioration of his capacity to protect himself from harm or to provide for his basic human needs. The bill also changes the criteria for the involuntary commitment of criminal defendants prior to trial, after conviction but before sentencing, and after sentencing to conform with clause (i) and (ii) (a) discussed above.

S.B. 139

Patron: Edwards

Community services board; attend all hearings. Requires that an employee of the community services board that prepared the preadmission screening report attend the involuntary commitment hearing. The bill provides that where in person attendance is not practicable, attendance may be by electronic means. Further it provides that where the hearing is held in the jurisdiction of another community services board, an employee of the community services board serving that jurisdiction may attend on behalf of the community services board that prepared the preadmission screening report.

S.B. 142

Patron: Edwards

Involuntary commitment hearings; recordings.  Requires that each hearing be recorded separately, so that no more than one hearing is recorded per tape or other recording.

S.B. 143

Patron: Edwards

Temporary detention order; extend time period.  Extends the duration of a temporary detention order to 96 hours.

S.B. 144

Patron: Edwards

Involuntary commitment; criteria. Changes the criteria for emergency custody orders, temporary detention orders, and involuntary commitment so that a person may be taken into emergency custody, placed under temporary detention, or involuntarily committed where it is found that (i) the person has a mental illness, and (ii) there exists a substantial likelihood that, as a result of that mental illness, the person will, in the near future, (a) cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm, or (b) suffer serious harm due to substantial deterioration of his capacity to protect himself from harm or to provide for his basic human needs.

S.B. 177

Patron: Marsh

Mental health; assisted outpatient treatment.  Establishes a program of assisted outpatient treatment for the severely mentally ill. The bill authorizes assisted outpatient treatment for persons previously hospitalized due to noncompliance with prescribed psychiatric treatment, who would be likely to meet the criteria for inpatient commitment without treatment. The bill requires that a specific written treatment plan be prepared by the community services board that gives consideration to the treatment preferences of the individual and explicitly bars the forcible administration of medication. The bill also authorizes a magistrate to issue a temporary detention order for an individual who fails to comply with an outpatient treatment order without good cause. The bill limits the duration of the court order to 180 days or less, and provides the person with procedural protections, including the right to an adversary hearing, the right to counsel, the right to an appeal, and the right to a jury trial on appeal.

S.B. 214

Patron: Edwards

Special justices; training.  Provides that all special justices, upon their appointment or reappointment, are required to complete the minimum training program prescribed by the Executive Secretary of the Supreme Court. Currently, only special justices who are appointed on or after January 1, 1996, are required to complete this program. The bill also requires all special justices to complete annually six hours of continuing legal education directly related to their duties. Such education is to be developed or approved by the Executive Secretary and shall be considered an approved Continuing Legal Education course for the purposes of the Mandatory Continuing Legal Education Rule of the Supreme Court of Virginia.

S.B. 216

Patron: Edwards

Involuntary mental health treatment; purchase of firearms; reporting to Central Criminal Records Exchange. Clarifies that orders for both involuntary inpatient and outpatient mental health treatment must be forwarded by the clerk of court to the Central Criminal Records Exchange, and that persons ordered to either involuntary inpatient or outpatient treatment are prohibited from purchasing, possessing, or transporting a firearm. This bill codifies Executive Order 50 (2007).

S.B. 217

Patron: Edwards


Involuntary commitment; independent examination.  Provides that a health care entities may shall disclose records to independent examiners conducting examinations of a person who is the subject of an involuntary commitment order. This bill also clarifies that a person who is subject to a temporary detention order shall be given a thorough psychological evaluation, including a substance abuse screening and that the independent evaluator shall review the person's medical records including records of any previous psychological evaluations, prior to conducting the evaluation.

S.B. 220

Patron: Edwards

Monitoring of compliance with outpatient treatment order.  Provides that the community services board or behavioral health authority that serves the city or county in which a person subject to an outpatient treatment order resides shall develop an outpatient treatment plan, which shall identify the community services board, behavioral health authority, or other provider designated to monitor the person's compliance with the order. This bill also provides that upon receiving notification of noncompliance with the order, the court shall issue a show cause order regarding the person's noncompliance with the order and may amend the involuntary outpatient treatment order or revoke the outpatient treatment order.

S.B. 226

Patron: McDougle

Purchase of firearms; consent form; mental health questions.  Requires that a person seeking to purchase a firearm from a firearms dealer answer questions on the state background check consent form concerning whether the applicant has ever been acquitted by reason of insanity, been adjudicated legally incompetent or mentally incapacitated, or been involuntarily admitted to a facility or involuntarily ordered to out-patient mental health treatment.

S.B. 231

Patron: McDougle

Involuntary mental health treatment; purchase of firearms; reporting to Central Criminal Records Exchange. Clarifies that orders for both involuntary inpatient and outpatient mental health treatment must be forwarded by the clerk of court to the Central Criminal Records Exchange, and that persons ordered to either involuntary inpatient or outpatient treatment are prohibited from purchasing, possessing, or transporting a firearm. This bill codifies Executive Order 50 (2007).

S.B. 245

Patron: Howell

Psychiatric inpatient treatment of minors; timing of petition and hearing.  Increases from 72 hours to 96 hours the length of time (i) to hold a hearing for the involuntary commitment of a minor or the emergency admission of a minor for inpatient treatment, and (ii) that a minor may be admitted by his parents to a facility over his objections. The bill also provides that the time to hold the involuntary commitment hearing runs from the filing of the petition for such hearing. The bill provides further that a petition for judicial approval of the admission of a minor by his parents over his objections shall be filed no sooner than 24 hours and no later than 96 hours after his admission.

S.B. 246

Patron: Howell

Involuntary commitment.  Establishes a new standard for involuntary outpatient commitment authorizing involuntary commitment where the person has a mental illness and there exists a substantial likelihood that, as a result of mental illness, the person will, in the near future (i) cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm, or (ii) suffer serious harm due to substantial deterioration of his capacity to protect himself from harm or to provide for his basic human needs. This bill also requires a provider of mental health services to disclose records to a magistrate, the court, the person's attorney, the examiner, a community services board (CSB) or behavioral health authority, or law-enforcement officer; authorizes a single four-hour extension of an emergency custody order; provides that a person under a temporary detention order may be released prior to 48 hours after the order is executed if the person does not pose a danger to himself or others; specifies records and evidence that must be reviewed prior to an independent examination; requires that a representative of the CSB preparing the preadmission screening report attend each commitment hearing; establishes additional requirements for outpatient commitment; requires an outpatient treatment plan be filed with the outpatient order; and clarifies the monitoring duty of the community services board.

S.B. 247

Patron: Howell

Commitment of minors; appointment of counsel and guardians ad litem.  Provides that a court shall appoint a guardian ad litem and counsel for a minor for involuntary commitment hearings and proceedings for the judicial approval of the admission for inpatient treatment of a minor 14 years of age or older over his objections.

S.B. 248

Patron: Howell

Additional fees in certain courts; use by Virginia State Bar.  Increases the civil action filing fee in circuit and district court to $10. Currently, the fee is $5. The additional $5 would be deposited into the Legal Aid Services Fund. 

S.B. 255

Patron: Deeds

Involuntary mental health treatment; possession of firearms.  Allows a judge or special justice who issues an order for involuntary admission to a facility or involuntary outpatient treatment to also order that any firearms be removed from the possession of the person subject to the order.

S.B. 273

Patron: Deeds

Emergency custody orders, temporary detention orders, and involuntary admissions.  Eliminates the requirement that an individual pose an imminent danger to himself or others; adds a requirement that handcuffs or other restraints may be used during transportation only if the person is deemed to be a danger to himself or others; and adds a requirement that the testimony of family members, friends, treating or examining physicians, or other individuals with a knowledge of the person's mental or emotional state be considered prior to the ordering of an emergency custody order, temporary detention order, or order for involuntary admission.

S.B. 274

Patron: Cuccinelli

Involuntary commitment; transfer to outpatient treatment.  Provides that the director of any facility in which a person subject to an involuntary commitment order is detained may petition the judge or special justice to order the person transferred to involuntary outpatient treatment if the director concludes that the person satisfies the criteria for outpatient treatment and that the person's mental illness would be more effectively treated in such an environment. Any petition for such a transfer must be accompanied by an affidavit from a psychiatrist or psychologist stating that he had personally examined the committed person within the five days preceding the filing of the petition and that he recommends the person be transferred to outpatient treatment. Upon receipt of a petition to transfer, the court judge or special justice shall proceed to hold a commitment hearing within 10 days.

S.B. 275

Patron: Cuccinelli

Mentally ill defendants; treatment. Adds a provision that a defendant in a criminal matter may be hospitalized if so seriously mentally ill as to be unable to care for himself. Under current law the standard is "imminently dangerous to himself or others." The provision applies to pretrial, after conviction but before sentencing and after sentencing. The bill specifies that the evaluation must be done in person by an employee of the community services board or its designee who is skilled in the assessment and treatment of mental illness and has completed a certification program approved by the Department of Mental Health, Mental Retardation and Substance Abuse Services.

S.B. 276

Patron: Cuccinelli

Psychiatric inpatient treatment of minors; timing of petition and hearing. Increases from 72 hours to 96 hours the length of time (i) to hold a hearing for the involuntary commitment of a minor or the emergency admission of a minor for inpatient treatment, and (ii) that a minor may be admitted by his parents to a facility over his objections. The bill also provides that the time to hold the involuntary commitment hearing runs from the filing of the petition for such hearing. The bill provides further that a petition for judicial approval of the admission of a minor by his parents over his objections shall be filed no sooner than 24 hours and no later than 96 hours after his admission.

S.B. 333

Patron: Cuccinelli

Independent examiners; dismissal of involuntary commitment petitions.  Provides that an independent examiner who examines a person prior to an involuntary commitment hearing may authorize the release of such person if he concludes there is not probable cause to believe that the person (i) 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 and (ii) requires involuntary inpatient treatment. If the person's release is authorized, the judge or special justice shall enter an order dismissing the petition for involuntary commitment. The bill also provides that independent examiners are immune for any act or omission in the performance of their duties, except in the case of willful misconduct.

S.B. 335

Patron: Cuccinelli

Voluntary outpatient treatment.  Provides the option for voluntary outpatient treatment prior to the commitment hearing if a special justice or judge can ascertain whether or not (i) there is appropriate treatment for the person's condition, (ii) the service providers agree to provide the services necessary, and (iii) the person has sufficient capacity to understand and adhere to the treatment plan. Also provides that the person would have to sign an agreement and that such agreement would be admissible at any subsequent commitment hearing.

S.B. 336

Patron: Cuccinelli

Temporary detention orders; encryption of medical records not required. Provides that a health care provider or designee of a local community services board or behavioral health authority shall not be required to encrypt any email containing information or medical records provided to a magistrate unless there is reason to believe that a third party will attempt to intercept the email.

S.B. 341

Patron: Cuccinelli

Temporary detention order; hearing. Provides that a hearing on an involuntary temporary detention order shall be held no sooner than 24 hours and no later than 72 hours from the time of the issuance of the order. Currently, such hearings are to be conducted within 48 hours from the time of the issuance of the order.

S.B. 345

Patron: Blevins

Conditional release; voluntary admission to a state hospital. Clarifies that voluntary admission to a state hospital shall not solely constitute grounds for revocation of a person's conditional release.

S.B. 380

Patron: Martin

Incompetent defendants; misdemeanors; dismissal of charges. Provides that if a defendant has been charged with a nonviolent misdemeanor only, and is being treated in an effort to restore his capacity, then after 45 days if his capacity has not been restored then the court shall dismiss the charges against him and decide whether he should be released, committed, or certified.

S.B. 440

Patrons: McEachin, Miller, Y.B.

Mentally ill defendants; treatment and hospitalization. Establishes a new standard for hospitalizing mentally ill criminal defendants. Hospitalization may occur when the defendant has a mental illness and there exists a substantial likelihood that, as a result of that mental illness, the defendant will, in the near future, cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm. Under current law the standard is "imminently dangerous to himself or others." The provision applies to pretrial, after conviction but before sentencing, and after sentencing. The bill specifies that the evaluation must be done face-to-face by an employee of the community services board or its designee who is skilled in the assessment and treatment of mental illness and has completed a certification program approved by the Department of Mental Health, Mental Retardation and Substance Abuse Services.

S.B. 626

Patron: Reynolds

Disposition of incompetent defendants. Provides that if, after a determination of a defendant's competency to stand trial is made, a court finds that a defendant is and is likely to remain incompetent for the foreseeable future, the court shall order that the defendant be (i) released, (ii) involuntarily committed, (iii) reviewed for commitment as a sexually violent predator, or (iv) certified as eligible for admission to a training center for persons with mental retardation. The bill also provides that duration of the treatment to restore the competency of a defendant charged with a misdemeanor, other than an offense against person or property involving the intentional threat of or the attempted or actual infliction of physical harm, shall be limited to 45 days.

S.B. 731

Patron: Smith

Purchase of firearms; reporting to Central Criminal Records Exchange. Clarifies that orders for both involuntary inpatient and outpatient mental health treatment must be forwarded by the clerk of court to the Central Criminal Records Exchange, and that persons ordered to either involuntary inpatient or outpatient treatment are prohibited from purchasing, possessing, or transporting a firearm. This portion of the bill codifies Executive Order 50 (2007). The bill also clarifies that clerks of court shall forward to the Central Criminal Records Exchange other orders affecting an individual's right to possess a firearm, such as if a person is acquitted by reason of insanity, is found incompetent to stand trial, or has the right to possess a firearm restored by a circuit court.

S.B. 769

Patron: Hurt

Commitment hearing; independent examiner or community services board member attending. Requires the independent examiner and the community services board employee or designee who prepared the prescreening report, or if the hearing occurs in a different jurisdiction, an employee or designee of the local community services board or behavioral health authority serving that jurisdiction, to attend the commitment hearing.