SB440: Inmates; emergency psychiatric treatment.
Be 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 or by two-way electronic video and audio communication
system 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 that mental illness, the defendant
will, in the near future, cause serious physical harm to himself or others as
evidenced by recent behavior causing, attempting or threatening harm, in
the opinion of a qualified mental health professional an employee or
the designee of the community services board; and (iii) requires psychiatric
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  has been
provided medical and psychiatric treatment, but that there exists a substantial
likelihood that, as a result of that mental illness, the defendant will, in the
near future, cause serious physical harm to himself or others as evidenced by
recent behavior causing, attempting or threatening harm and (ii) requires psychiatric
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 an in-person or by two-way
electronic video and audio communication system 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
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,
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, cause serious harm to himself or others
as evidenced by recent behavior causing, attempting or threatening harm,
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 that mental illness, the defendant
will, in the near future, cause serious physical harm to himself or others as
evidenced by recent behavior causing, attempting or threatening harm, 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. Evaluation of defendant for mental illness after conviction but before sentence; hearing, hospitalization.
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 psychiatric 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 others
if not immediately hospitalized has been provided medical and
psychiatric treatment, but that there exists a substantial likelihood that, as
a result of that mental illness, the defendant will, in the near future, cause
serious physical harm to himself or others as evidenced by recent behavior
causing, attempting or threatening harm, 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, (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 that mental illness, the defendant will, in the
near future, cause serious physical harm to himself or others as evidenced by
recent behavior causing, attempting or threatening harm, and (iii)
(ii) 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 that mental illness, the defendant
will, in the near future, cause serious physical harm to himself or others as
evidenced by recent behavior causing, attempting or threatening harm and
(ii) requires psychiatric 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 an in-person or by two-way
electronic video and audio communication system 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.
Be 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 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 others that there exists a
substantial likelihood that, as a result of that mental illness, the defendant
will, in the near future, cause serious physical harm to himself or others as
evidenced by recent behavior causing, attempting or threatening harm,
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 that
there exists a substantial likelihood that, as a result of that mental illness,
the defendant will, in the near future, cause serious physical harm to himself
or others as evidenced by recent behavior causing, attempting or threatening
harm 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 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 others 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 that
there continues to exist a substantial
likelihood that, as a result of that mental illness, the defendant will, in the
near future, cause serious physical harm to himself or others as evidenced by
recent behavior causing, attempting or threatening harm, 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. Evaluation of defendant for mental illness after conviction but before sentence; hearing, hospitalization.
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 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 that mental illness,
the defendant will, in the near future, cause serious physical harm to himself
or others as evidenced by recent behavior causing, attempting or threatening
harm, 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, (ii) imminently dangerous to self
or others and that there exists a substantial likelihood
that, as a result of that mental illness, the defendant will, in the near
future, cause serious physical harm to himself or others as evidenced by recent
behavior causing, attempting or threatening harm, and (iii) (ii) 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 that
there exists a substantial likelihood that, as a result of that mental illness,
the defendant will, in the near future, cause serious physical harm to himself
or others as evidenced by recent behavior causing, attempting or threatening
harm 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 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, 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.