Logo for Basu Law PLLC

Civil Mental Health Commitments

A Virginia court can order treatment of a person who is suffering from a mental illness, if the court finds that the person also presents a threat of serious physical harm, or is unable to care for themselves, or protect themselves from harm.  The term mental illness ("MI") generally means a condition identified in the Diagnostic and Statistical Manual of Mental Disorders. Some examples of such MI are schizophrenia, anxiety, depression, addiction, eating disorders, and dementia.  An appropriately qualified mental health professional diagnoses an illness.

If your family member, loved one, or friend needs psychiatric treatment or hospitalization, a lawyer can help prepare and present your case.

Court-ordered treatment can be in a locked psychiatric unit (called involuntary inpatient treatment or involuntary hospitalization), with mandatory outpatient treatment ("MOT") to follow upon discharge if the court so orders.  Or, the court can order either inpatient treatment or MOT alone, without the other. 

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 discharges the patient when the treating staff conclude that is appropriateHowever, a person can be placed in a locked unit for a long time if the court extends a first 30-day inpatient treatment order before the 30-day period expires.  Such an extension is for up to 180 days.  In addition, the court can renew any 180-day inpatient treatment order before it expires, for another 180 days.  Each extension requires a new court hearing.

The petitioner who initiates the civil commitment process is usually a concerned spouse, other close relative, a medical practitioner, qualified representative of a county mental health services organization, or a police officer.  At the hearing, the allegedly ill person (called the respondent) has the right to an attorney, and the court appoints an attorney to represent the respondent if they do not have their private attorney present. The court also engages a mental health examiner who is not employed by the hospital where the respondent is located; this independent examiner provides a written evaluation to the court, and testifies in person at the hearing about the respondent's mental health. The respondent may have their own witnesses and qualified medical experts present at the hearing to testify.

The respondent has the option to appeal an order of treatment, but must note his or her appeal within 10 days of the hearing.  An appeal results in a new trial in the circuit court, generally within a couple of weeks, where the respondent can ask for a jury to decide the case. Noting an appeal does not by itself cause the respondent to be released from the treatment order being appealed. In addition, Virginia law requires the local Commonwealth's Attorney (prosecutor) to present the case for treatment at the appeal..

Sequence of mental health proceedings

Court proceedings usually begin with an Emergency Custody Order (ECO) issued by a magistrate or called in by a police officer.  An ECO is usually effective for up to 8 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 about 72 hours after a TDO, the court convenes at the commitment hearing to decide whether to order treatment or release the respondent.  This commitment hearing is like a trial, except that a special court generally convenes at the hospital where the respondent is detained.

The commitment hearing

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 few days of 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 restores that right.

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.  If mental health issues become apparent to qualified staff at a jail, they may be able to initiate other court proceedings, e.g., to transfer the inmate to a state hospital for treatment.

Other respondents who are properly released at their commitment hearings later become the subject of new TDOs based on new behavior or evidence.

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.