By Fitch, W. Lawrence
Developments in Mental Health Law , Vol. 5, No. 3-4
Psychiatric Hospitalization of Jail Inmates
An interagency committee established by the Virginia Department of Mental Health and Mental Retardation and the Virginia Department of Corrections to implement the recommendations of the Joint Task Force on the Mentally ill in Virginia's Jails (reported in the previous issue of Developments in Mental Health Law) recently announced its proposals for statutory reform. Chief among these is the following provision, which would amend the procedures for hospitalizing mentally iii jail inmates.
[section] 19.2-169.6 Psychiatric hospitalization of jail inmates--A. An order for psychiatric hospitalization may be issued for any person who is incarcerated in a jail after a commitment proceeding conducted according to the procedures set forth in [section] 188.8.131.52 through [section] 37.1-70, as modified by the following provisions:
(i) in addition to the criteria for commitment specified in [section] 3 7.1-67.3, the judge must find that the person requires treatment in a hospital rather than in the jail;
(ii) if the person has not been tried and sentenced, his attorney, if available, shall be notified and given an opportunity to represent the person at the commitment hearing;
B. If any person hospitalized pursuant to this section has not been tried and sentenced, copies of the hospitalization order shall be provided to his attorney and to the court with jurisdiction over his case.
C. Upon issuance of a hospitalization order under this section, the person shall be presented for admission to a willing hospital designated by the Commissioner as appropriate for the treatment and evaluation of persons charged with or convicted of crime. Upon presentation of person under a hospitalization order issued under this section, a psychiatrist or a psychologist on the staff of the hospital shall conduct an evaluation of the person and determine whether he requires treatment in a hospital rather than in a jail. If the psychiatrist or psychologist determines that treatment in a hospital is not required, the person shall immediately be returned to jail.
D. Any person hospitalized pursuant to this section who has not completed service of his sentence or against whom criminal charges remain pending shall immediately be returned to the jail upon discharge.
E. In no event shall hospitalization ordered pursuant to this section be continued beyond the expiration date of the person's sentence, unless the person is committed pursuant to [section] [section] 37. 1-67.1 et. seq.; nor shall such hospitalization be grounds for a delay of trial, so long as the defendant remains competent to stand trial.
By consolidating and revising the various statutory provisions that presently govern the transfer of jail inmates to psychiatric hospitals, the proposed legislation aims at establishing a single, clear procedure that will expedite necessary transfers while protecting the due process rights of transferees, in particular, the new provision is designed to:
* Provide a uniform, consistent procedure for the hospitalization of jail inmates, whether pretrial, presentence, or postsentence. (Current [section] 19.2-169.6 applies only to pretrial jail detainees; procedures for the hospitalization of other inmates are derived from statutes governing civil commitment and forensic evaluation and treatment.)
* Facilitate the prompt placement (i.e., pre-hearing detention) of an inmate by eliminating the requirements of the current [section] 19.2-169.6 that the judge and defense attorney participate in the initial placement decision. (Under existing law, the hospitalization of a pretrial jail detainee may occur only if (1) the defendant's attorney is notified that hospitalization is under consideration and is given an opportunity to challenge the grounds for transfer and (2) the judge with criminal jurisdiction, or a judge designated by such judge, makes the requisite commitment findings. …