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Civil Mental Health Commitments

A Virginia court can order treatment of a mentally ill person who presents a threat of serious physical harm or is unable to care of himself or herself.  For "mental illness," the law includes schizophrenia, anxiety, depression, addiction, retardation, eating disorders, dementia, and more.  If your family member, loved one, or friend needs psychiatric treatment or hospitalization, Mr. Basu can help prepare and present your case to the special justice or judge at the civil commitment hearing.

At the hearing, the petitioner must prove that the person (1) has a mental illness, (2) presents a threat of serious physical harm, or an inability to take care of his or her own basic human needs, (3) due to mental illness.  If the person is able to take care of his or her own basic human needs, then the threat of harm to be proved can be to self or to others.  The court weighs the evidence to decide whether to issue a treatment order.  What is the harm threatened?  How likely is the harm?  When is the harm expected?  With evidence of very serious physical harm, the court may order treatment even if the chance of harm is low, or even if the harm is not expected to occur within the next several days.

Treatment can be in a locked psychiatric unit (called involuntary inpatient treatment or involuntary hospitalization), with mandatory outpatient treatment to follow upon release if the court so decides.  Or, the court can order mandatory outpatient treatment without inpatient treatment.  But before the court orders any treatment at all, it must be satisfied that the person meets Virginia's legal requirements for mental health treatment against his or her wishes.

Virginia's civil commitment process seeks to balance the patient's rights with the public interest.  These are not criminal proceedings, and the person will not be confined in a jail as a result of a civil commitment order.  The medical facility generally releases the patient when their doctors conclude that release is appropriateHowever, a person can be placed in a locked unit for a long time if the court extends the first 30-day treatment order when it expires.  An extension is for up to 180 days.  In addition, the court can renew a 180-day treatment order every 180 days.  Each extension requires a new court hearing, and it can be the doctors at the treating medical facility who ask for the hearing because they believe more treatment is appropriate.

The petitioner who starts the civil commitment process is usually a concerned spouse, a close relative, a medical practitioner, or a police officer.  Court proceedings include magistrate's orders and a hearing (trial) where the allegedly ill person (called the respondent) has the right to an attorney.  If the court orders treatment at the end of the hearing, the respondent can appeal the decision, but he or she has 10 days to note the appeal.  An appeal results in a new trial in the circuit court, where the respondent can ask for a jury.

Mr. Basu participates in some hearings as a court-appointment attorney for the respondent.  He can assist the petitioner in other commitment proceedings.

Sequence of mental health proceedings

Court proceedings usually begin with an Emergency Custody Order (ECO) issued by a magistrate, but not always.  An ECO is effective for a few hours.  Before the ECO expires, a magistrate must issue a longer-term Temporary Detention Order (TDO) or the respondent is likely to be released.  Such a TDO generally issues upon the recommendation of a qualified mental health professional who evaluates the respondent before the ECO expires.  If a qualified mental health professional is not available to evaluate the respondent before the ECO expires, the respondent may be released.

Within a couple of days after a TDO, the court convenes at a commitment hearing to decide whether to order treatment or release the respondent.  This commitment hearing is like a trial, except that a special court may convene at the hospital or even in the hospital room where the respondent is detained.

The commitment hearing

The court may appoint an attorney to represent the respondent at the commitment hearing even though this is not a criminal trial, because commitment against a person's wishes runs against certain constitutional rights.  In addition to the special justice or judge and the attorney for the respondent, others who may be present at the hearing are the petitioner, the respondent, witnesses, mental health professionals, a representative of the local Community Services Board, and sheriff's deputies.

At the hearing, the respondent can demand immediate release or volunteer for a short-term admission for inpatient treatment.  The court can release the respondent, agree to voluntary short-term admission, order inpatient treatment, or order mandatory outpatient treatment ("MOT") if the court finds from the evidence that MOT is or will be appropriate as a less restrictive alternative to inpatient treatment.  Note that any outcome other than an immediate release curtails the respondent's right to possess, purchase, or transport a firearm until an appropriate court (usually the circuit court) restores that right.

If the court issues a treatment order at the commitment hearing, the respondent may appeal for a new trial in the circuit court and ask for a jury there.  Mr. Basu can represent you in circuit court proceedings.

Other considerations

The civil commitment process cannot guarantee a successful result in all cases.  In some cases, the mental illness is either not recognized or not acknowledged, and the person does not enter the civil commitment process.  Instead, he or she enters the criminal justice system by way of a criminal charge for disorderly conduct, assault, battery, or other offense.

Other respondents who are properly released at their commitment hearings later become the subject of new TDOs based on new behavior or evidence.  Repeated commitment-release cycles frustrate the families of those with recurring symptoms.

In some areas of Virginia, a bed is not always available at a nearby mental health treatment facility, or a particular facility may not provide treatment without assurance of payment for services.  Although Virginia's General Assembly modified our civil commitment laws in 2008 based on the recommendations of a Commission on Mental Health Law Reform, several press reports criticized Virginia's delivery of mental health services in November 2013 following a tragic incident at a released respondent's home in Bath County, Virginia.  That incident resulted in changes such as the following: a person now may be held for up to eight hours under an ECO instead of six hours; if the person meets TDO criteria, a state psychiatric facility must admit him or her as a last resort where no bed is available at another facility; and the TDO duration is extended from 48 hours to 72 hours.


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