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Developed and maintained by the Division of Legislative Automated Systems.
2008 SESSION
081465432Be 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,
only after a face-to-face evaluation by an employee of the local community
services board or its designee who is skilled in the assessment and
treatment of mental illness and who has completed a certification program
approved by the Department as provided in § 37.2-809, 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 othersthere exists a substantial likelihood that as a result
of that mental illness the defendant will, in the near future, (a) cause
serious physical harm to himself or others as evidenced by recent behavior or
any other relevant information or (b) suffer serious harm due to his lack of
capacity to protect himself from harm or to provide for his basic human needs 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 has mental illness
and is imminently dangerous to himself or othersthere exists a
substantial likelihood that as a result of that mental illness the defendant
will, in the near future, (a) cause serious physical harm to himself or others
as evidenced by recent behavior or any other relevant information 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) the defendant 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 a face-to-face evaluation by
an employee of the local community services board or its designee who is
skilled in the assessment and treatment of mental illness and who has
completed a certification program approved by the Department as provided in §
37.2-809, provided a district court judge or a special justice, as defined
in § 37.2-100 or, if a judge or special justice is not available, a magistrate,
upon the advice of a person skilled in the diagnosis and treatment of mental
illness, subsequently issues a temporary detention order for treatment in
accordance with the procedures specified in §§ 37.2-809 through 37.2-813. In no
event shall the defendant have the right to make application for voluntary
admission and treatment as may be otherwise provided in § 37.2-805 or 37.2-814.
If the defendant is committed pursuant to subdivision 1 of this subsection, the attorney for the defendant shall be notified that the court is considering hospitalizing the defendant for psychiatric treatment and shall have the opportunity to challenge the findings of the qualified mental health professional. If the defendant is detained pursuant to subdivision 2 of this subsection, the court having jurisdiction over the defendant's case and the attorney for the defendant shall be given notice prior to the detention pursuant to a temporary detention order or as soon thereafter as is reasonable. Upon detention pursuant to subdivision 2 of this subsection, a hearing shall be held, upon notice to the attorney for the defendant, either (i) before the court having jurisdiction over the defendant's case or (ii) before a district court judge or a special justice, as defined in § 37.2-100, in accordance with the provisions of § 37.2-820, in which case the defendant shall be represented by counsel as specified in § 37.2-814; the hearing shall be held within 48 hours of execution of the temporary order to allow the court that hears the case to make the findings, based upon clear and convincing evidence, that are specified in subdivision 1 of this subsection. If the 48-hour period herein specified terminates on a Saturday, Sunday, or legal holiday, the person may be detained for the same period allowed for detention pursuant to a temporary detention order issued pursuant to §§ 37.2-809 through 37.2-813.
In any case in which the defendant is hospitalized pursuant to this section, the court having jurisdiction over the defendant's case may provide by order that the admitting hospital evaluate the defendant's competency to stand trial and his mental state at the time of the offense pursuant to §§ 19.2-169.1 and 19.2-169.5.
B. A defendant subject to this section shall be treated at a
hospital designated by the Commissioner as appropriate for treatment and
evaluation of persons under criminal charge. The director of the hospital
shall, within 30 days of the defendant's admission, send a report to the court
with jurisdiction over the defendant addressing the defendant's continued need
for treatment for a mental illness and being imminently dangerous to himself
or othersany substantial likelihood that as a result of that mental
illness the defendant will, in the near future, (a) cause serious physical harm
to himself or others as evidenced by recent behavior or any other relevant
information 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, 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) the
defendant continues to have a mental illness, (ii) be imminently
dangerous to himself or othersthere exists a substantial likelihood that
as a result of that mental illness the defendant will, in the near future, (a)
cause serious physical harm to himself or others as evidenced by recent
behavior or any other relevant information 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 (iii) the defendant continues to 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 evaluationsby an employee of the local
community services board or its designee who is skilled in the assessment
and treatment of mental illness and who has completed a certification program approved
by the Department as provided in § 37.2-809,. 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 othersthere
exists a substantial likelihood that as a result of that mental illness the
defendant will, in the near future, (a) cause serious physical harm to himself
or others as evidenced by recent behavior or any other relevant information or
(b) suffer serious harm due to his lack of capacity to protect himself from
harm or to provide for his basic human needs, if not immediately
hospitalized, 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) the defendant continues to be mentally
ill, (ii) imminently dangerous to self or othersthere exists a
substantial likelihood that as a result of that mental illness the defendant
will, in the near future, (a) cause serious physical harm to himself or others
as evidenced by recent behavior or any other relevant information 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 (iii) the defendant continues to
be in need of psychiatric treatment in a hospital. Hospitalization may be
extended in this manner for periods of 180 days, but in no event may such
hospitalization be continued beyond the date upon which his sentence would have
expired had he received the maximum sentence for the crime charged.
§ 19.2-177.1. Determination of mental illness after sentencing; hearing.
A person convicted of a crime who is in the custody of a local
correctional facility after sentencing may be the subject of a commitment
hearing for involuntary admission in accordance with the procedures provided in
Chapter 8 (§ 37.2-800 et seq.) of Title 37.2. Such hearing shall be commenced
upon petition of the person having custody over the prisoner. If the person
having custody over the prisoner has reasonable cause to believe that (i) the
prisoner has mental illness and is imminently dangerous to himself or othersthere
exists a substantial likelihood that as a result of that mental illness the
prisoner will, in the near future, (a) cause serious physical harm to himself
or others as evidenced by recent behavior or any other relevant information 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 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 a face-to-face
evaluation by and employee of the local community services board or its
designee who is skilled in the assessment and treatment of mental illness
and who has completed a certification program approved by the Department as
provided in § 37.2-809,, then a district court judge or a special justice,
as defined in § 37.2-100 or, if a judge is not available, a magistrate, upon
the advice of a person skilled in the diagnosis and treatment of mental
illness, 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 (i) 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,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 or any other relevant information 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) is in need of
hospitalization or treatment, and (iv) 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) the person 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,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 or any other
relevant information 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)
the person is in need of hospitalization or treatment, and (iv) the
person 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 othersthere is no
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 or any other relevant information or (b) suffer
serious harm due to his lack of capacity to protect himself from harm or to
provide for his basic human needs. 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 othersthere is no substantial
likelihood that, as a result of that mental illness the person will, in the
near future, cause serious physical harm to himself or others as evidenced by
recent behavior or other relevant information or (b) suffer serious harm due to
his lack of capacity to protect himself from harm or to provide for his basic
human needs 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 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 illnesshave a mental illness and there does or
does not exist 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 or any other relevant information
or is or is not so seriously mentally ill as to be substantially unable to
care for himselfor (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 himselfhas
a mental illness and whether 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 or
any other relevant information 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 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 illnessn or has been proven to
be so seriously mentally ill as to be substantially unable to care for himselfhas
a mental illness and 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 or any other
relevant information 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 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 or any other
relevant information 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 (i)
the prisoner does or does not have mental illness, (ii) there does or
does not exist 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 or any other relevant
information or (b) suffer serious harm due to his lack of capacity to protect
himself from harm or to provide for his basic human needsdoes or does
not present an imminent danger to himself or others, and (iii) the
person 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 illnesshas a mental
illness and 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 or any other relevant
information or has been proven to be so seriously mentally ill as to be
substantially unable to care for himself(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.