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Developed and maintained by the Division of Legislative Automated Systems.
2008 SESSION
080300248Be it enacted by the General Assembly of Virginia:
1. That §§ 37.2-809 and 37.2-817 of the Code of Virginia are amended and reenacted as follows:
§ 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 there is probable cause to issue a temporary detention order, the magistrate may, in addition to the petition, consider (i) the recommendations of any treating or examining physician or psychologist 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, if the witness is unavailable and it so states in the affidavit, and (vii) any other information available that the magistrate considers relevant to the determination of whether probable cause exists 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.
§ 37.2-817. Involuntary admission and outpatient treatment orders.
A. The district court judge or special justice shall render a decision on the petition for involuntary admission after the appointed examiner has presented his report, orally or in writing, pursuant to § 37.2-815 and after 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 has presented a preadmission screening report, orally or in writing, with recommendations for that person's placement, care, and treatment pursuant to § 37.2-816. These reports, if not contested, may constitute sufficient evidence upon which the district court judge or special justice may base his decision.
B. After observing the person and obtaining the necessary
positive certification and considering any other relevant evidence that may
have been offered (i) the recommendations of any treating or examining
physician or psychologist licensed in Virginia, if available, (ii) any past
actions of the person, (iii) any past mental health treatment of the person,
(iv) any examiner's certification, (v) any health records available, (vi) the
preadmission screening report, and (vii) any other relevant evidence that may
have been admitted, if the judge or special justice finds by clear and
convincing evidence that (i) (a) 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) (b) alternatives to involuntary inpatient treatment have
been investigated and deemed unsuitable and there is no less restrictive
alternative to involuntary inpatient treatment, the judge or special justice
shall by written order and specific findings so certify and order that the
person be admitted involuntarily to a facility for a period of treatment not to
exceed 180 days from the date of the court order. Such involuntary admission
shall be to a facility designated by the community services board or behavioral
health authority that serves the city or county in which the person was
examined as provided in § 37.2-816. If the community services board or
behavioral health authority does not designate a facility at the commitment
hearing, the person shall be involuntarily admitted to a facility designated by
the Commissioner. The person shall be released at the expiration of 180 days
unless he is involuntarily admitted by further petition and order of a court or
such person makes application for treatment on a voluntary basis as provided
for in § 37.2-805.
C. After observing the person and obtaining the necessary
positive certification and considering any other relevant evidence that may
have been offered (i) the recommendations of any treating or examining
physician or psychologist licensed in Virginia, if available, (ii) any past
actions of the person, (iii) any past mental health treatment of the person,
(iv) any examiner's certification, (v) any health records available, (vi) the
preadmission screening report, and (vii) any other relevant evidence that may
have been admitted, if the judge or special justice finds by clear and
convincing evidence that (i) (a) 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) (b) less restrictive alternatives to involuntary inpatient
treatment have been investigated and are deemed suitable, (iii) (c)
the person (a) (1) has the degree of competency necessary to
understand the stipulations of his treatment, (b) (2) expresses
an interest in living in the community and agrees to abide by his treatment
plan, and (c) (3) is deemed to have the capacity to comply with
the treatment plan, and (iv) (d) 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. The community services board or behavioral health authority that
serves the city or county in which the person resides shall recommend a
specific course of treatment and programs for the provision of involuntary
outpatient treatment. The community services board, behavioral health
authority, or designated provider shall monitor the person's compliance with
the treatment ordered by the court under this section, and the person's failure
to comply with involuntary outpatient treatment as ordered by the court may be
admitted into evidence in subsequent hearings held pursuant to the provisions
of this section. 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.