Understanding and Applying Virginia's New Statutory Civil Commitment Criteria

By Cohen, Bruce J.; Bonnie, Richard J. et al. | Developments in Mental Health Law, July 2009 | Go to article overview

Understanding and Applying Virginia's New Statutory Civil Commitment Criteria


Cohen, Bruce J., Bonnie, Richard J., Monahan, John, Developments in Mental Health Law


In 2008, Virginia's General Assembly enacted significant amendments to the Commonwealth's civil commitment statute, based on the recommendations of the Commission on Mental Health Law Reform (the "Commission"). This Article is designed to review the statutory language that modified the civil commitment criteria, provide examples of how the new language in the statute might be applied, and promote a common understanding of the commitment criteria across the Commonwealth.

I. Background

Previous commitment criteria (from VA. CODE [section] 37.2-817B) (key phrases in bold): (1)

   After observing the person and obtaining
   the necessary positive certification and
   considering any other relevant evidence
   that may have been offered,

   if the judge or special justice finds by clear
   and convincing evidence that

      (i) the person presents an imminent
      danger to himself or others as a
      result of mental illness OR has been
      proven to be so seriously mentally
      ill as to be substantially unable to
      care for himself and ...

      (ii) ... there is no less restrictive
      alternative to involuntary inpatient
      treatment,

   the judge or special justice shall order that
   the person be admitted involuntarily to a
   facility for a period of treatment not to
   exceed 180 days ...

New commitment criteria (from VA. CODE [section] 37.2-817C):

The revised statute amended the language of both prongs of the previous civil commitment criteria. The new statute provides the following:

   After observing the person and
   considering (i) the recommendations of
   any treating physician or psychologist
   licensed in Virginia, if available, (ii) any
   past actions of the person, (iii) any past
   mental health treatment of the person, (iv)
   any examiner's certification, (v) any health
   records available, (vi) the preadmission
   screening report, and (vii) any other
   relevant evidence that may have been
   admitted,

   if the judge or special justice finds by clear
   and convincing evidence that

      (a) the person has a mental illness
      and there is a substantial likelihood
      that, as a result of mental illness,
      the person will, in the near future,

        (1) cause serious physical harm
        to himself or others as
        evidenced by recent behavior
        causing, attempting, or
        threatening harm and other
        relevant information, if any, OR

        (2) suffer serious harm due to
        his lack of capacity to protect
        himself from harm or to provide
        for his basic human needs, and.

      (b) all available less restrictive
       treatment alternatives to involuntary
      inpatient treatment have been...
      determined to be inappropriate,

   the judge or special justice shall order that
   the person be admitted involuntarily to a
   facility for a period of treatment not to
   exceed 30 days ..."

Why were the civil commitment criteria revised?

The 2008 General Assembly made several changes to the civil commitment legislation designed to address two key problems.

* First, research conducted by the Commission documented striking variations on civil commitment procedures and outcomes throughout the Commonwealth. (2) This variability raises serious questions of fairness as well as how well the state was addressing the needs of persons with serious mental illness. It also suggested the need for greater statutory specificity to guide the various professionals involved with civil commitment proceedings.

* Second, the phrase "imminent danger" to oneself or others (used in the previous statute) was widely regarded as unduly restrictive.

To promote more uniform application of the civil commitment criteria as well as broadening the circumstances that could lead to civil commitment, the General Assembly modified the criteria for civil commitment based on proposals recommended by the Commission.

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