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.
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. …