HB267: Involuntary admission; court determines petitioner is indigent, court shall appoint counsel.
Be it enacted by the General Assembly of Virginia:
1. That § 37.2-814 of the Code of Virginia is amended and reenacted as follows:
§ 37.2-814. Commitment hearing for involuntary admission; written explanation; right to counsel; rights of petitioner.
A. The commitment hearing for involuntary admission shall be held within 48 hours of the execution of the temporary detention order as provided for in § 37.2-809; however, if the 48-hour period herein specified terminates on a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed, the person may be detained, as herein provided, until the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed.
B. At the commencement of the commitment hearing, the district court judge or special justice shall inform the person whose involuntary admission is being sought of his right to apply for voluntary admission and treatment as provided for in § 37.2-805 and shall afford the person an opportunity for voluntary admission. The judge or special justice shall ascertain if the person is then willing and capable of seeking voluntary admission and treatment. If the judge or special justice finds that the person is capable and willingly accepts voluntary admission and treatment, the judge or special justice shall require him to accept voluntary admission for a minimum period of treatment not to exceed 72 hours. After such minimum period of treatment, the person shall give the hospital 48 hours' notice prior to leaving the hospital. During this notice period, the person shall not be discharged except as provided in § 37.2-837, 37.2-838, or 37.2-840. The person shall be subject to the transportation provisions as provided in § 37.2-829 and the requirement for preadmission screening by a community services board or behavioral health authority as provided in § 37.2-805.
C. If a person is incapable of accepting or unwilling to accept voluntary admission and treatment, the judge or special justice shall inform the person of his right to a commitment hearing and right to counsel. The judge or special justice shall ascertain if the person whose admission is sought is represented by counsel, and, if he is not represented by counsel, the judge or special justice shall appoint an attorney to represent him. However, if the person requests an opportunity to employ counsel, the judge or special justice shall give him a reasonable opportunity to employ counsel at his own expense.
D. A written explanation of the involuntary admission process and the statutory protections associated with the process shall be given to the person, and its contents shall be explained by an attorney prior to the commitment hearing. The written explanation shall describe, at a minimum, the person's rights to (i) retain private counsel or be represented by a court-appointed attorney, (ii) present any defenses including independent evaluation and expert testimony or the testimony of other witnesses, (iii) be present during the hearing and testify, (iv) appeal any order for involuntary admission to the circuit court, and (v) have a jury trial on appeal. The judge or special justice shall ascertain whether the person whose involuntary admission is sought has been given the written explanation required herein.
E. To the extent possible, during or before the commitment hearing, the attorney for the person whose involuntary admission is sought shall interview his client, the petitioner, the examiner described in § 37.2-815, the community services board or behavioral health authority staff, and any other material witnesses. He also shall examine all relevant diagnostic and other reports, present evidence and witnesses, if any, on his client's behalf, and otherwise actively represent his client in the proceedings. A health care provider shall disclose or make available all such reports, treatment information, and records concerning his client to the attorney, upon request. The role of the attorney shall be to represent the wishes of his client, to the extent possible.
F. The petitioner shall be given adequate notice of the place, date, and time of the commitment hearing. The petitioner shall be entitled to retain counsel at his own expense, to be present during the hearing, and to testify and present evidence. The petitioner shall be encouraged but shall not be required to testify at the hearing, and the person whose involuntary admission is sought shall not be released solely on the basis of the petitioner's failure to attend or testify during the hearing.
The petitioner may claim that he is indigent in the petition, and the court shall determine from competent evidence whether or not the petitioner is indigent. Upon finding that the petitioner is indigent, the court shall appoint the petitioner competent counsel who is licensed by the Commonwealth to practice law.
Be it enacted by the General Assembly of Virginia:
1. That § 37.2-817 of the Code of Virginia is amended and reenacted and that the Code of Virginia is amended by adding a section numbered 37.2-816.1 as follows:
§ 37.2-816.1. Commitment hearing for involuntary admission; relevant testimony.
The district court judge or special justice shall allow, when available, testimony from individuals closely associated with the person who is the subject of the hearing, including immediate family members, as to (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 and (ii) how the person's history of mental illness relates to the person's current condition. Such testimony shall be sworn and may be either oral or written.
§ 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,
and after any immediate family
members or other individuals closely associated with the subject of the hearing have given sworn testimony pursuant to § 37.2-816.1. 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 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. If the director of any facility in which a person is detained pursuant to an involuntary commitment order entered in accordance with subsection B concludes (i) that the person satisfies the criteria for involuntary outpatient treatment set forth in subsection D and (ii) that the person's mental illness would be more effectively treated by outpatient treatment, he may petition the judge or special justice to order that the person by transferred from involuntary inpatient commitment to outpatient treatment. Any petition filed pursuant to this subsection shall be accompanied by an affidavit of a psychiatrist or psychologist who is licensed in Virginia by the Board of Medicine or the Board of Psychology stating that he has personally examined the person subject to the involuntary commitment order within the five days preceding the filing of the petition and that he recommends that the person be transferred to outpatient treatment. Upon receipt of a petition to transfer a person from involuntary inpatient commitment to outpatient treatment, the judge or special justice shall conduct a commitment hearing in accordance with the provisions of this article, except for the provisions of § 37.2-814 setting the time for the hearing. Instead, a hearing under this subsection shall be held within 10 days of the filing of the petition; however, if the 10-day period herein specified terminates on a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed, the hearing will be held on the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed.
Nothing in this subsection shall affect the ability of a director of a facility to discharge or transfer persons pursuant to Article 7 (§ 37.2-837 et seq.) of this chapter.
CD.
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 either (a) 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, or (b) has been previously diagnosed
with psychoses, has been prescribed antipsychotic or psychotropic medication, has failed to properly take such medication
as prescribed, resulting in patient commitment in
the past two years, and
without such medication will present
an imminent danger to himself or others as a result of mental illness or will
likely be so seriously mentally ill as to be substantially unable to care for
himself, (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.
E. The community services board, behavioral health authority, or designated provider shall report any material noncompliance with the outpatient treatment order to the judge or special justice. Copies of this report shall be sent to the person subject to the treatment order and to the person's counsel, if any. Upon receipt of such report, the judge or special justice may issue a temporary detention order in accordance with the provisions of § 37.2-808 and may direct the appropriate law-enforcement agency to take the person into custody. After the issuance of the temporary detention order, the judge or special justice may proceed with an involuntary commitment hearing in accordance with the provisions of this article. Upon a finding of material noncompliance with the involuntary outpatient treatment order, the judge or special justice may order involuntary admission to a facility.
For purposes of this subsection, "material noncompliance" shall include, but not be limited to, a person's failure to, without good cause, take medication, refusing to take, or failing a blood test, urinalysis, or alcohol or drug test, or not maintaining reasonable contact with outpatient treatment monitors or care providers. Such material noncompliance shall be civil contempt of court.