Justice Matter with Bryan Porter: The law and mental health crises

Justice Matter with Bryan Porter: The law and mental health crises
Bryan Porter in his office at the Alexandria Courthouse. (Photo Credit: Missy Schrott)

The General Assembly remains in special session as I write, so the update as to what legislation is enacted will be delayed a month or two. In the meantime, at the suggestion of a citizen, this month I will explore how the Virginia code addresses people experiencing a mental health crisis.

Virginia Code §37.2-808, an extremely lengthy section, outlines under what circumstances a person may be involuntarily admitted to a hospital for mental health observation. Magistrates may issue what is known as an Emergency Custody Order where, based upon the sworn statement of “any responsible person (or) treating physician,” there is probable cause to believe a person:

i) has a mental illness,

ii) the person is likely to cause harm to himself or others “in the near future,” and

iii) is in need of hospitalization and is unwilling to volunteer for such treatment.

Once issued, an ECO commands law enforcement officers to take the person into custody and transport them to a “convenient location,” usually a hospital, for a mental health assessment. ECOs are only valid for eight hours from issuance. If the person named in the ECO is not taken into custody within the requisite time frame, the ECO is void.

Law enforcement officers also have the legal authority to take a person into emer- gency custody without an ECO in certain circumstances. Just like an ECO, the officer must have probable cause to believe a person has a mental illness and presents an imminent danger to himself or others. A person taken into emergency custody is also taken to a hospital for evaluation.

It is important to note that a citizen can never be taken into emergency custody simply for experiencing a mental health crisis. Instead, the focus is on whether or not the person presents a danger of violence. As I have repeatedly noted, the percentage of people with mental illness who engage in violence is extremely low and most people with mental illness are far more likely to be a victim of violence than to perpetrate it. Therefore, the number of people taken into custody via ECOs is thankfully low.

The purpose of an ECO is to get a person in crisis a formal assessment by a mental health professional. After the eval is complete, a magistrate may issue a different order, known as a Temporary Detention Order if the evaluation confirms the need for hospitalization and treatment.

A TDO remains in effect for 72 hours, during which time the person will receive treatment and be more formally examined by doctors, who will decide whether to release the person at the end of the TDO period or to seek an order of involuntary admission from a court for continued treatment.

If involuntary admission is indicated, the treatment team will produce a detailed pre-admission screening report and submit it to the General District Court. The court will docket an in-court commitment hearing and, since the state is attempting to hold a citizen against his will for treatment, a panoply of due process protections kicks in.

The court must advise the person of his constitutional right to object to involuntary commitment and to have counsel to assist him with the matter. If the person in unable or unwilling to hire an attorney, the court is required to appoint a lawyer to represent him at the commitment hearing.

Importantly, if a judge orders a person into involuntary commitment at the conclusion of the hearing, the person has a right to appeal the decision to the Circuit Court. The Code specifically states that the Commonwealth’s Attorney must represent the government during the appellate trial and that the person has the right to demand a jury trial on the matter.

A commitment hearing jury is comprised of seven people who are tasked with determining whether the government has proved, by a preponderance of the evidence, that the person is experiencing a mental illness and is a danger to himself or others.

An initial court order requiring involuntary admission extends for 30 days, at which point the person will be released unless the court enters a new order. If issued, this second order may remain in effect for up to 180 days. The court may also order a person into mandatory outpatient treatment, instead of an inpatient admission, in certain circumstances.

The writer is Commonwealth’s Attorney for Alexandria.