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Developed and maintained by the Division of Legislative Automated Systems.
2008 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 19.2-169.6, 19.2-176, 19.2-177.1, 37.2-808, 37.2-809, 37.2-813, 37.2-815, 37.2-816, 37.2-817, and 53.1-40.2 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 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 that there exists a substantial likelihood that, as
a result of 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 and other relevant information, if
any, in the opinion of a qualified mental health professional; and (iii)
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 (i) has
mental illness and is imminently dangerous to himself or others that
there exists a substantial likelihood that, as a result of 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
and other relevant information, if any, and (ii) requires treatment in a
hospital rather than jail and the person having such custody arranges for an
evaluation of the defendant by a person skilled in the diagnosis and treatment
of mental illness 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, 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 the
continued substantial likelihood that, as a result of 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 such harm and other relevant information, if any, 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, and that
there continues to exist a substantial likelihood that, as a result of 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 and other relevant information, if any, and (iii)
(ii) 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 hearing representations of the defendant's counsel, finds clear and convincing evidence that the defendant (i) is mentally ill, and (ii) 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 it appears from all evidence readily available that the
defendant is mentally ill and poses an imminent danger to himself or others
if not immediately hospitalized that there exists a substantial
likelihood that, as a result of 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 and other relevant
information, if any, 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 hours of
execution of the temporary order of detention, or if the forty-eight-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 to 37.2-813.
C. A defendant may not be hospitalized longer than thirty 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, (ii) imminently
dangerous to self or others, and that there continues to exist a
substantial likelihood that, as a result of 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 and other
relevant information, if any, and (iii) (ii) 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 (i) has mental illness and is imminently dangerous to
himself or others that there exists a substantial likelihood that, as a
result of mental illness, the prisoner will, in the near future, cause serious
physical harm to himself or others as evidenced by recent behavior causing,
attempting, or threatening harm and other relevant information, if any, and
(ii) 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, 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, 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.
§ 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 a 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 and that there exists a
substantial likelihood that, as a result of 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 and other
relevant information, if any, or (b) suffer serious harm due to his lack of
capacity to protect himself from harm or to provide for his basic human needs,
(iii) (ii) is in need of hospitalization or treatment, and (iv)
(iii) is unwilling to volunteer or incapable of volunteering for
hospitalization or treatment.
B. 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.
C. 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.
D. 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 B 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.
E. 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.
F. 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.
G. 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.
H. 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.
I. 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 a 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
and that there exists a substantial likelihood that, as a result of 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 and other relevant information, if any, or (b) suffer serious
harm due to his lack of capacity to protect himself from harm or to provide for
his basic human needs, (iii) (ii) is in need of
hospitalization or treatment, and (iv) (iii) 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. 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.
D. 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.
E. 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.
F. 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.
G. 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.
H. 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.
I. 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.
§ 37.2-813. Release of person prior to commitment hearing for involuntary admission.
Prior to a hearing as authorized in §§ 37.2-814 through
37.2-819 or § 16.1-341, the district court judge or special justice may release
the person on his personal recognizance or bond set by the district court judge
or special justice if it appears from all evidence readily available that the
person will not pose an imminent danger to himself or others does not
meet the commitment criteria specified in subsection C of § 37.2-817. In
the case of a minor, the juvenile and domestic relations district court judge
may release the minor to his parent. The director of any facility in which the
person is detained may release the person prior to a hearing as authorized in
§§ 37.2-814 through 37.2-819 or § 16.1-341 if it appears, based on an
evaluation conducted by the psychiatrist or clinical psychologist treating the
person, that the person would not present an imminent danger to himself or
others meet the commitment criteria specified in subsection C of §
37.2-817 or § 16.1-345 if released.
§ 37.2-815. Commitment hearing for involuntary admission; examination required.
Notwithstanding § 37.2-814, the district court judge or special justice shall require an examination of the person who is the subject of the hearing by a psychiatrist or a psychologist who is licensed in Virginia by the Board of Medicine or the Board of Psychology and is qualified in the diagnosis of mental illness or, if such a psychiatrist or psychologist is not available, any mental health professional who is (i) licensed in Virginia through the Department of Health Professions and (ii) qualified in the diagnosis of mental illness. The examiner chosen shall be able to provide an independent examination of the person. The examiner shall (a) not be related by blood or marriage to the person, (b) not be responsible for treating the person, (c) have no financial interest in the admission or treatment of the person, (d) have no investment interest in the facility detaining or admitting the person under this chapter, and (e) except for employees of state hospitals, the U.S. Department of Veterans Affairs, community service boards, and behavioral health authorities, not be employed by the facility. For purposes of this section, the term "investment interest" shall be as defined in § 37.2-809.
All such examinations shall be conducted in private. The judge
or special justice shall summons the examiner who shall certify that he has
personally examined the person and state whether he has probable cause
to believe that the person (i) does or does not present an imminent danger
to himself or others as a result of mental illness or is or is not so seriously
mentally ill as to be substantially unable to care for himself has a
mental illness and there is a substantial likelihood that, as a result of
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 and other relevant information, if any, or (b) suffer
serious harm due to his lack of capacity to protect himself from harm or to
provide for his basic human needs, and (ii) requires or does not require
involuntary inpatient treatment. Alternatively, the judge or special justice
may accept written certification of the examiner's findings if the examination
has been personally made within the preceding five days and if there is no
objection sustained to the acceptance of the written certification by the
person or his attorney. The judge or special justice shall not render any
decision on the petition until the examiner has presented his report orally or
in writing.
§ 37.2-816. Commitment hearing for involuntary admission; preadmission screening report.
The district court judge or special justice shall require 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 report shall be admissible as
evidence of the facts stated therein and shall state (i) whether the person presents
an imminent danger to himself or others as a result of mental illness or is so
seriously mentally ill that he is substantially unable to care for himself has
a mental illness and whether there exists a substantial likelihood that, as a
result of 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 and other relevant information, if
any, or (b) suffer serious harm due to his lack of capacity to protect himself
from harm or to provide for his basic human needs, (ii) whether the person
is in need of involuntary inpatient treatment, (iii) whether there is no less
restrictive alternative to inpatient treatment, and (iv) the recommendations
for that person's placement, care, and treatment. The board or authority shall
provide the preadmission screening report within 48 hours or if the 48-hour
period terminates on a Saturday, Sunday, legal holiday, or day on which the
court is lawfully closed, the next day that is not a Saturday, Sunday, legal
holiday, or day on which the court is lawfully closed. In the case of a person
who has been sentenced and committed to the Department of Corrections and who
has been examined by a psychiatrist or clinical psychologist, the judge or
special justice may proceed to adjudicate whether the person has mental illness
and should be involuntarily admitted without requesting a preadmission
screening report from the community services board or behavioral health
authority.
§ 37.2-817. Involuntary admission and mandatory 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, if the judge or special justice finds by clear and convincing evidence
that (i) 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 has a mental illness and
there is a substantial likelihood that, as a result of 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
and other relevant information, if any, or (b) suffer serious harm due to his
lack of capacity to protect himself from harm or to provide for his basic human
needs, and (ii) 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, if the judge or special justice finds by clear and
convincing evidence that (i) 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 has
a mental illness and that there exists a substantial likelihood that, as a
result of 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 and other relevant information, if
any, or (b) suffer serious harm due to his lack of capacity to protect himself
from harm or to provide for his basic human needs, (ii) less restrictive
alternatives to involuntary inpatient treatment have been investigated and are
deemed suitable, (iii) the person (a) has the degree of competency necessary to
understand the stipulations of his treatment, (b) expresses an interest in
living in the community and agrees to abide by his treatment plan, and (c) is
deemed to have the capacity to comply with the treatment plan, and (iv) 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.
§ 53.1-40.2. Involuntary admission of prisoners with mental illness.
A. Upon the petition of the Director or his designee, any district court judge or any special justice, as defined by § 37.2-100, of the county or city where the prisoner is located may issue an order authorizing involuntary admission of a prisoner who is sentenced and committed to the Department of Corrections and who is alleged or reliably reported to have a mental illness to a degree that warrants hospitalization.
B. Such prisoner may be involuntarily admitted to a hospital or facility for the care and treatment of persons with mental illness by complying with the following admission procedures:
1. A hearing on the petition shall be scheduled as soon as possible, allowing the prisoner an opportunity to prepare any defenses which he may have, obtain independent evaluation and expert opinion at his own expense, and summons other witnesses.
2. Prior to such hearing, the judge or special justice shall fully inform the prisoner of the allegations of the petition, the standard upon which he may be admitted involuntarily, the right of appeal from such hearing to the circuit court, and the right to jury trial on appeal. The judge or special justice shall ascertain if the prisoner is represented by counsel, and, if he is not represented by counsel, the judge or special justice shall appoint an attorney to represent the prisoner.
3. The judge or special justice shall require an examination
of such prisoner by a psychiatrist who is licensed in Virginia or a clinical
psychologist who is licensed in Virginia or, if such psychiatrist or clinical
psychologist is not available, a physician or psychologist who is licensed in Virginia and who is qualified in the diagnosis of mental illness. The judge or special
justice shall summons the examiner, who shall certify that he has personally
examined the individual and has probable cause to believe that the prisoner
does or does not have mental illness, does or does not present an imminent
danger to himself or others that there does or does not exist a
substantial likelihood that, as a result of mental illness, the prisoner will, in
the near future, cause serious physical harm to himself or others as evidenced
by recent behavior causing, attempting, or threatening harm and other relevant
information, if any, and that the prisoner does or does not require
involuntary hospitalization. The judge or special justice may accept written
certification of the examiner's findings if the examination has been personally
made within the preceding five days and if there is no objection to the
acceptance of such written certification by the prisoner or his attorney.
4. If the judge or special justice, after observing the
prisoner and obtaining the necessary positive certification and other relevant
evidence, finds specifically that (i) the prisoner 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 the
prisoner has a mental illness and that there exists a substantial likelihood
that, as a result of mental illness, the prisoner will, in the near future, (a)
cause serious physical harm to himself or others as evidenced by recent
behavior causing, attempting, or threatening harm and other relevant
information, if any, or (b) suffer serious harm due to his lack of capacity to protect
himself from harm or to provide for his basic human needs, and (ii)
alternatives to involuntary admission have been investigated and deemed
unsuitable and there is no less restrictive alternative to such admission, the
judge or special justice shall by written order and specific findings so
certify and order that the prisoner be placed in a hospital or other facility
designated by the Director for a period not to exceed 180 days from the date of
the court order. Such placement shall be in a hospital or other facility for
the care and treatment of persons with mental illness that is licensed or
operated by the Department of Mental Health, Mental Retardation and Substance
Abuse Services.
5. The judge or special justice shall also order that the relevant medical records of such prisoner be released to the hospital, facility, or program in which he is placed upon request of the treating physician or director of the hospital, facility, or program.
6. The Department shall prepare the forms required in procedures for admission as approved by the Attorney General. These forms, which shall be the legal forms used in such admissions, shall be distributed by the Department to the clerks of the general district courts of the various counties and cities of the Commonwealth and to the directors of the respective state hospitals.