Where are We Now?
By Bonnie P. Lane, Attorney at Law Goodman Allen Donnelly PLLC
The sufficiency of Virginia’s behavioral health laws has been thrust into the spotlight due to two tragic events: the shooting at Virginia Tech in 2007, and the November 2013 attack on Senator Creigh Deeds by his mentally ill son. The Senator’s son was sent home after a psychiatric bed was unable to be located; he subsequently attacked his father and then committed suicide.
The Legislature responded to the demands for substantial changes to the existing structure of the mental health system to include some positive changes to the laws regarding emergency custody orders (ECO) and temporary detention orders (TDO). Currently, the time period in which a person can be held under an ECO extends to eight hours. Each person taken into emergency custody receives a written summary of the emergency custody procedures and the statutory protections associated with those procedures. Additionally, patients brought to hospitals under an ECO who also qualify for a TDO no longer can be released when the ECO expires simply because a facility cannot be located. The state psychiatric facility in the region where the patient is located is the TDO facility of last resort and the patient must be admitted there if no other facility can be located to accept the patient. The time period for holding PATIENTS under a TDO has also been extended from 48 to 72 hours before THEY MUST BE discharged or ATTEND an involuntary commitment hearing. A statewide web-based psychiatric bed registry has been created to help locate available beds.
These changes come as an effort to reduce the number of individuals at risk of causing harm to either themselves or others, and who are in need of hospitalization or medical treatment from being released without getting the help they need. In many instances, this can lead to those individuals committing serious offenses and ending up in the criminal justice system. In 2015, 25.29 percent of the female Virginia inmate population, and 13.63 percent of the male population, was diagnosed as mentally ill. 46.82 percent of the mentally ill population and 7.87 percent of the general population were diagnosed with a serious mental illness. There is no state-funded mental health treatment program operating within jails, and private contractors provide the most significant portion of mental health treatment in jails. Community Service Boards only have a statutory requirement to evaluate inmates for whom a TDO is being sought, with no obligation to provide treatment. The Department of Behavioral Health Developmental Services has waiting lists for individuals coming from jails.
The Legislature continues to work to improve the system. The Center for Behavioral Health and Justice has been established to achieve greater behavioral health and justice coordination across public and private sectors. Joint Subcommittees and task forces are also working to institute additional statutory and regulatory changes, hopefully in the near future.
Bonnie P. Lane is an attorney at the Norfolk office of Goodman Allen Donnelly PLLC, and focuses her practice primarily on medical malpractice defense litigation and healthcare issues. www.goodmanallen.com