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2008 SESSION
080859216Be it enacted by the General Assembly of Virginia:
1. That §§ 19.2-169.6, 19.2-176, and 19.2-177.1 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 an in-person 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 others has
been provided medical and psychiatric treatment, but that there exists a
substantial likelihood that, as a result of mental illness, the defendant will,
in the near future, (a) cause serious physical harm to himself or others as
evidenced by recent behavior causing, attempting or threatening harm, or (b)
prove to be so seriously mentally ill as to be substantially unable to care for
himself, in the opinion of a qualified mental health professional
an employee or the designee of the community services board; 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 others and has been
provided medical and psychiatric treatment, but that there exists a substantial
likelihood that, as a result of mental illness, the defendant will, in the near
future, (a) cause serious harm to himself or others as evidenced by recent
behavior causing, attempting or threatening harm, or (b) prove to be so
seriously mentally ill as to be substantially unable to care for himself, 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 in-person 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
that he has been provided medical and psychiatric treatment, but that there
continues to exist a substantial likelihood that, as a result of mental
illness, the defendant will, in the near future, (a) cause serious physical
harm to himself or others as evidenced by recent behavior causing,
attempting or threatening harm, or (b) prove to be so seriously mentally ill as
to be substantially unable to care for himself, 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 has
been provided medical and psychiatric treatment, but that there continues to
exist a substantial likelihood that, as a result of mental illness, the
defendant will, in the near future, (a) cause serious physical harm to himself
or others as evidenced by recent behavior causing, attempting or threatening
harm, or (b) prove to be so seriously mentally ill as to be substantially
unable to care for himself, 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 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. 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 has mental illness and poses an
imminent danger to himself or others if not immediately hospitalized has
been provided medical and psychiatric treatment, but that there exists a
substantial likelihood that, as a result of mental illness, the defendant will,
in the near future, (a) cause serious physical harm to himself or others as
evidenced by recent behavior causing, attempting or threatening harm, or (b)
prove to be so seriously mentally ill as to be substantially unable to care for
himself, 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 48 hours of execution
of the temporary order of detention, or if the forty-eight 48-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
30 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
have mental illness, (ii) imminently dangerous to self or others
and has been provided medical and psychiatric treatment, but that there
continues to exist a substantial likelihood that, as a result of mental
illness, the defendant will, in the near future, (a) cause serious physical
harm to himself or others as evidenced by recent behavior causing, attempting
or threatening harm, or (b) prove to be so seriously mentally ill as to be
substantially unable to care for himself, and (iii)(ii) 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 others
has been provided medical and psychiatric treatment, but that there exists a
substantial likelihood that, as a result of mental illness, the defendant will,
in the near future, (a) cause serious physical harm to himself or others as
evidenced by recent behavior causing, attempting or threatening harm, or (b)
prove to be so seriously mentally ill as to be substantially unable to care for
himself, and (ii) requires treatment in a hospital rather than a local
correctional facility and only after the person having such custody
arranges for an evaluation of the prisoner by a person skilled in the
diagnosis and treatment of mental illness in-person 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,
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.