2014 VIRGINIA MENTAL HEALTH LAW CHANGES

AND

CASE STUDIES/NAVIGATING NEW ROUTES TOIMPROVED MENTAL HEALTH CARE

FOR OLDER ADULTS

GOALS FOR WEBINAR

Part 1

Brief review

Background onVirginia’s involuntaryadmission process

Major changes for2014 in Virginia law

governing involuntaryadmissions

Part 2

Case Examples

Review selectedcases

Practice applyingclinical knowledge and

Virginia law

PART 1

2014 CHANGES IN VIRGINIA’S STATUTESFOR

INVOLUNTARY ADMISSION

JAMES M. MARTINEZ, JR.

DIRECTOR, OFFICE OF MENTAL HEALTH SERVICES

VIRGINIA DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

VIRGINIA AND OTHER STATES’ LAWS

This presentation [Part 1] includes material about Virginia’sinvoluntary treatment process for people with mental illness,which is based on Virginia law.

Individual states all have their own involuntary treatmentlaws.

State laws in this area are rooted in the Constitution andSupreme Court decisions. They share many similarities butare rarely identical. Standards and procedures can also bevery different from state to state.

The situations discussed here are relevant anywhere, so it’simportant to know the laws of your state.

THE INVOLUNTARY ADMISSION PROCESS

• INVOLUNTARY ADMISSION IS THE CIVIL COURT PROCESS BY

WHICH A PETITION IS FILED TO INITIATE INVOLUNTARY

PSYCHIATRIC TREATMENT FOR A PERSON WHO NEEDS CARE BUT

WHO IS UNWILLING, OR INCAPABLE OF VOLUNTEERING FOR

TREATMENT (CODE OF VIRGINIA, §37.2-808, ET. SEQ)

• The petition is adjudicated by a judge or special justice at a formal court hearing.

• Due process protections are important, but balancing rights of individuals withcommunity interests and public safety can often be difficult. Treatmentresources are limited and controversies abound.

• Procedures seem simple, but effective implementation is a complex task underbest of circumstances.

*Operational procedures vary considerably by locality

VIRGINIA’S INVOLUNTARY ADMISSION PROCESS

Basic Steps*CSB Crisis

Contact

Court Hearingon Petition

EmergencyCustody

TemporaryDetention

Releaseor

Dismissal

MandatoryOutpatientTreatment

VoluntaryInpatient

InvoluntaryInpatient

2014 CHANGES IN VIRGINIA LAW

• Mental health legislation and studies were driven bySen. Deeds’ family experience

• Over 35 bills related to involuntary treatmentprocess filed by legislators

• The most significant changes were in theemergency custody and temporary detentionprocedures.

VIRGINIA’S INVOLUNTARY ADMISSION PROCESS

Most significant 2014 legislative changeswere in ECO and TDO process

CSB CrisisContact

Court Hearingon Petition

EmergencyCustody

TemporaryDetention

Releaseor

Dismissal

MandatoryOutpatientTreatment

VoluntaryInpatient

InvoluntaryInpatient

Emergency custodyand temporary

detentionare not required forevery involuntary

admission

i.e.,

- ECO is not required fortemporary detention

- TDO is not required forcommitment hearing

BUT

Both procedures areneeded for dueprocess, practical andclinical reasons:

• Emergency custody allows asafe, in-person exam toconfirm clinical condition andneed for temporary detentionor possible involuntaryhospitalization.

• Temporary detention keepsthe person safe, enablestreatment to start, and allowstime to prepare for a fair courthearing.

PURPOSE OFEMERGENCY CUSTODY AND TEMPORARY DETENTION

EMERGENCY CUSTODYSB260/HB478

ECO valid up to 8 hoursfrom time of execution

• 8-hour period applies to ECOsissued by magistrate and“paperless” ECOs (or “officer-initiated” ECOs)

• Old law was 4 hours, with onepossible 2-hour extension

• No extension provision in new law

ECO must be executedwithin8 hours of issuance

(ECO becomes void if not executed)

• Old law was 6 hours

0 8 hrs

EMERGENCY CUSTODYSB260/HB478

Law enforcement agencythat executes an ECO mustnotify the CSB responsible

for conducting theevaluation as soon as

practicable after taking theperson into custody

Notification requirementapplies to paper ECOs and

“paperless” ECOs

The person taken intoemergency custody must begiven a written summary of

the emergency custodyprocedures and the statutoryprotections associated with

those procedures

Written summary will beavailable from the courts forlaw officers (and others) to

print and hand out.

DETERMINING TEMPORARY DETENTION FACILITYSB260/HB293

Upon receiving notification ofthe need for an evaluation, theCSB must contact the primary

state facility and notify thefacility that the individual will betransported to that facility upon

the issuance of a TDO if analternative facility cannot beidentified by the expiration of

the 8 hour emergency custodyperiod

Upon completion of theevaluation, CSB must provide

information about the individualto the state facility to help the

state facility determine theservices the individual will need

if admitted.

Once notified, the state facilitymay search for an alternative

facility

State facility may contactanother state facility if it is

unable to provide temporarydetention and appropriate care

If state facility finds analternative facility, it shall notify

the CSB and the CSB shalldesignate the alternative facilityon the preadmission screening

report

A state facility shall not fail orrefuse to admit an individualwho meets the criteria for aTDO unless an alternativefacility agrees to accept the

individual

An individual who meets thecriteria for a TDO shall not be

released

If a facility of temporarydetention cannot be identifiedby the expiration of the 8-houremergency custody period, theindividual shall be detained in

the state facility

State facility shall be indicatedon the TDO

CHANGE OF TEMPORARY DETENTION FACILITYHB 1172

CSB may change the facility oftemporary detention and designatean alternative facility at any point

during the period of temporarydetention

• CSB must determine that thealternative facility is a moreappropriate facility given the specificsecurity, medical, or behavioral needsof the person

• CSB must provide notice to the clerkof the court of the name and addressof the alternative facility

If temporary detention facilityis changed, then transportation is

provided in accordance with§ 37.2-810

• If law enforcement or an alternativetransportation provider has custody ofthe person when the change is made,individual shall be transported toalternative facility

• If individual has already beentransported to initial TDO facility, CSBshall request an order from themagistrate specifying an alternativetransportation provider or (if noalternative provider is available), thelocal law enforcement agency wherethe person resides or is located, if 50-mile rule is applicable

TEMPORARY DETENTION

S260/HB478

• The person detained shallbe given a writtensummary of the temporarydetention procedures andthe statutory protectionsassociated with thoseprocedures

• Written summary will beon back of temporarydetention order

SB260/HB574

• Commitment hearing shallbe held within 72 hours ofexecution of the TDO. [If72-hour period ends on aSaturday, Sunday, legalholiday, or day on whichthe court is lawfullyclosed, person may bedetained until COB on thenext business day whenthe court is open]

• Old law was 48 hoursmaximum before hearing

IMPLICATIONS OF ECO AND TDO LAW CHANGES

TO SYSTEM

• No individual will be released from emergency custody whoneeds involuntary treatment

• State hospitals will be the “facility of last resort”, and cannotrefuse an admission when no other facility can be found

• Changes may alter decision–making paradigm of emergencydepartments, community psych hospitals, communityservices boards, law officers, and others when evaluatingrisk and response to individuals experiencing mental healthcrises

• State hospital capacity likely to be stretched or strained

IMPLICATIONS OF ECO AND TDO LAW CHANGES

TO PRACTICE• Effective utilization of limited state hospital resources will be

important (managing the front-door and the back door).

• Minimize use of involuntary or judicial intervention wheneverpossible. Use advance planning strategies (e.g., advancedirectives, WRAP) to help prevent and manage crises, and reducecoercive care.

• Careful screening and assessment will be critically important,especially medical screening and medical assessment.

• Good collaboration with safety net partners is essential to delivereffective care for individuals and families. Build and sustain theserelationships actively.

• Be proactive is dealing with safety net “glitches.”

VIRGINIA PSYCHIATRIC BED REGISTRYSB260/HB1232

DBHDS to develop and administer a web-based acute psychiatricbed registry to show available acute beds in public and privateinpatient psychiatric facilities and residential crisis stabilization units,

Registry intended to help identify willing and available facilities fortemporary detention of individuals who meet the TDO criteria

Registry in operation as of March 3, 2014 (Legislation was effectiveupon signing by Governor)

Bed registryincludes:

Descriptive informationabout each inpatient

facility or crisisstabilization unit

Contact information

Real-time informationabout

Number of bedscurently available

Type of patients thatmay be admitted

Level of securityprovided

Other information tohelp identify

appropriateness fortemporary detention

BED REGISTRY

Required facilitylistings are:

• State facilities• CSBs residential crisis

stabilization units• Private inpatient

providers licensed byDBHDS

Registry allowssearches by:

• CSBs• Inpatient psychiatric

facilities• Residential crisis

stabilization units• Health care providers

working in an ER orother facility renderingemergency medicalcare

CSB EVALUATORS – STUDYSB261/HB1216

• DBHDS to review the required qualifications, training, andoversight of individuals performing preadmission screeningevaluations

• Make recommendations for increasing qualifications,training, and oversight

• Report findings to the Governor and General Assembly byDecember 1, 2014