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2008 SESSION
081451432Be it enacted by the General Assembly of Virginia:
1. That §§ 37.2-808 and 37.2-809 of the Code of Virginia are amended and reenacted as follows:
§ 37.2-808. Emergency custody; issuance and execution of order.
A. Any magistrate may issue, upon the sworn petition of any responsible person or upon his own motion, an emergency custody order when he has probable cause to believe that any person within his judicial district (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.
B. When considering whether there is probable cause to issue an emergency custody order pursuant to subsection A, the magistrate may, in addition to the petition, consider (i) the recommendations of any treating or examining physician licensed in Virginia, if available, (ii) any past actions of the person, (iii) any past mental health treatment of the person, (iv) any relevant hearsay evidence, (v) any medical records available, (vi) any affidavits submitted, and (vii) any other information available that the magistrate considers relevant to the determination of whether probable cause exists to issue an emergency custody order.
BC. Any
person for whom an emergency custody order is issued shall be taken into
custody and transported to a convenient location to be evaluated to assess the
need for hospitalization or treatment. The evaluation shall be made by a person
designated by the community services board or behavioral health authority who
is skilled in the diagnosis and treatment of mental illness and who has
completed a certification program approved by the Department.
CD. The
magistrate issuing an emergency custody order shall specify the primary
law-enforcement agency and jurisdiction to execute the emergency custody order
and provide transportation. Transportation under this section shall include
transportation to a medical facility as may be necessary to obtain emergency
medical evaluation or treatment that shall be conducted immediately in
accordance with state and federal law. Transportation under this section shall
include transportation to a medical facility for a medical evaluation if a
physician at the hospital in which the person subject to the emergency custody
order may be detained requires a medical evaluation prior to admission.
DE. The
magistrate shall order the primary law-enforcement agency from the jurisdiction
served by the community services board or behavioral health authority that
designated the person to perform the evaluation required in subsection BC
to execute the order and provide transportation. If the community services
board or behavioral health authority serves more than one jurisdiction, the
magistrate shall designate the primary law-enforcement agency from the
particular jurisdiction within the community services board's or behavioral
health authority's service area where the person who is the subject of the
emergency custody order was taken into custody or, if the person has not yet
been taken into custody, the primary law-enforcement agency from the
jurisdiction where the person is presently located to execute the order and
provide transportation.
EF. A
law-enforcement officer may lawfully go to or be sent beyond the territorial
limits of the county, city, or town in which he serves to any point in the
Commonwealth for the purpose of executing an emergency custody order pursuant
to this section.
FG. A
law-enforcement officer who, based upon his observation or the reliable reports
of others, has probable cause to believe that a person meets the criteria for
emergency custody as stated in this section may take that person into custody
and transport that person to an appropriate location to assess the need for
hospitalization or treatment without prior authorization. Such evaluation shall
be conducted immediately.
GH.
Nothing herein shall preclude a law-enforcement officer from obtaining
emergency medical treatment or further medical evaluation at any time for a
person in his custody as provided in this section.
HI. The
person shall remain in custody until a temporary detention order is issued or
until the person is released, but in no event shall the period of custody
exceed four hours.
IJ. If
an emergency custody order is not executed within four hours of its issuance,
the order shall be void and shall be returned unexecuted to the office of the
clerk of the issuing court or, if such office is not open, to any magistrate
thereof.
§ 37.2-809. Involuntary temporary detention; issuance and execution of order.
A. For the purposes of this section:
"Designee of the local community services board" means an examiner designated by the local community services board or behavioral health authority who (i) is skilled in the assessment and treatment of mental illness, (ii) has completed a certification program approved by the Department, (iii) is able to provide an independent examination of the person, (iv) is not related by blood or marriage to the person being evaluated, (v) has no financial interest in the admission or treatment of the person being evaluated, (vi) has no investment interest in the facility detaining or admitting the person under this article, and (vii) except for employees of state hospitals and of the U.S. Department of Veterans Affairs, is not employed by the facility.
"Employee" means an employee of the local community services board or behavioral health authority who is skilled in the assessment and treatment of mental illness and has completed a certification program approved by the Department.
"Investment interest" means the ownership or holding of an equity or debt security, including shares of stock in a corporation, interests or units of a partnership, bonds, debentures, notes, or other equity or debt instruments.
B. A magistrate may issue, upon the sworn petition of any responsible person or upon his own motion and only after an in-person evaluation by an employee or a designee of the local community services board, a temporary detention order if it appears from all evidence readily available, including any recommendation from a physician or clinical psychologist treating the person, 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. The magistrate shall also consider the recommendations of any treating or examining physician licensed in Virginia if available either verbally or in writing prior to rendering a decision.
C. When considering whether to issue a temporary detention order pursuant to subsection B, the magistrate may, in addition to the petition, consider (i) the recommendations of any treating or examining physician licensed in Virginia, if available, (ii) any past actions of the person, (iii) any past mental health treatment of the person, (iv) any relevant hearsay evidence, (v) any medical records available, (vi) any affidavits submitted, and (vii) any other information available that the magistrate considers relevant to the determination of whether to issue a temporary detention order.
CD. A
magistrate may issue a temporary detention order without an emergency custody
order proceeding. 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.
DE. An
employee or a designee of the local community services board shall determine
the facility of temporary detention for all individuals detained pursuant to
this section. The facility of temporary detention shall be one that has been
approved pursuant to regulations of the Board. The facility shall be identified
on the preadmission screening report and indicated on the temporary detention
order. Except as provided in § 37.2-811 for defendants requiring
hospitalization in accordance with subdivision A 2 of § 19.2-169.6, the person
shall not be detained in a jail or other place of confinement for persons
charged with criminal offenses.
EF. Any
facility caring for a person placed with it pursuant to a temporary detention
order is authorized to provide emergency medical and psychiatric services
within its capabilities when the facility determines that the services are in
the best interests of the person within its care. The costs incurred as a
result of the hearings and by the facility in providing services during the
period of temporary detention shall be paid and recovered pursuant to §
37.2-804. The maximum costs reimbursable by the Commonwealth pursuant to this
section shall be established by the State Board of Medical Assistance Services
based on reasonable criteria. The State Board of Medical Assistance Services
shall, by regulation, establish a reasonable rate per day of inpatient care for
temporary detention.
FG. The
employee or the designee of the local community services board who is
conducting the evaluation pursuant to this section shall determine, prior to
the issuance of the temporary detention order, the insurance status of the
person. Where coverage by a third party payor exists, the facility seeking
reimbursement under this section shall first seek reimbursement from the third
party payor. The Commonwealth shall reimburse the facility only for the balance
of costs remaining after the allowances covered by the third party payor have
been received.
GH. The
duration of temporary detention 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.
HI. If
a temporary detention order is not executed within 24 hours of its issuance, or
within a shorter period as is specified in the order, the order shall be void
and shall be returned unexecuted to the office of the clerk of the issuing
court or, if the office is not open, to any magistrate thereof. Subsequent
orders may be issued upon the original petition within 96 hours after the
petition is filed. However, a magistrate must again obtain the advice of an
employee or a designee of the local community services board prior to issuing a
subsequent order upon the original petition. Any petition for which no
temporary detention order or other process in connection therewith is served on
the subject of the petition within 96 hours after the petition is filed shall
be void and shall be returned to the office of the clerk of the issuing court.
IJ. The
chief judge of each general district court shall establish and require that a
magistrate, as provided by this section, be available seven days a week, 24
hours a day, for the purpose of performing the duties established by this
section. Each community services board or behavioral health authority shall
provide to each general district court and magistrate's office within its
service area a list of its employees and designees who are available to perform
the evaluations required herein.