Mental Health Law Reform

1. Mental Health Law Reform Office of the Vice President for Government Relations and Health Policy

2. Background • Virginia Tech Panel • Supreme Court Commission • Legislation and process during the 2008 General Assembly • HB 499 (Hamilton) and SB 246 (Howell) • First steps in ongoing process

3. Budget - $41.7 million Investment

4. Presentation Overview • Commitment Criteria • Emergency Custody Orders • Temporary Detention Orders • Independent Examiners • Hearing Procedural Changes • Next Steps

5. Commitment Criteria (i) has a mental illness, (ii) presents an imminent danger to himself or others as a result of mental illness or is so seriously mentally ill as to be substantially unable to care for himselfand that there exists a substantial likelihood that, as a result of mental illness, the person will, in the near future, (a) 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 (b) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs…

6. New Commitment Criteria 1st prong – Dangerousness • “Imminent” Removed from Dangerous Criteria: “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”

7. New Commitment Criteria • Substantial Likelihood • “Substantial likelihood” replaces “imminent danger” • But substantial likelihood is limited by “near future” • And must be evidenced by a recent act or behavior or other relevant evidence (i.e. future is tied to recent past)

8. New Commitment Criteria • Near Future • 28 states have a temporal requirement • 22 states have none • Case law interpreting “near future” based upon facts of each case • Illinois interprets “near future” to be equivalent to “within a reasonable time.”

9. New Commitment Criteria • Recent Behavior • Recitation of past acts not sufficient in absence of prediction of future dangerousness • 34 states require an act or some behavior to meet commitment criteria • 8 states use Virginia’s new standard

10. New Commitment Criteria 2nd prong – Lack of Capacity • 􀂄 Substantially Unable to Care for Self changed to: “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, (2) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs”

11. New Commitment Criteria • Lack of Capacity • More specificity added • Substantial likelihood/Near future • Will suffer serious harm • Due to lack of capacity to protect himself from harm • Not limited to physical harm • Can encompass serious financial harm • Due to lack of capacity to provide for his basic human needs • 􀂄 Not limited to food, clothing or shelter • 􀂄 Includes medically necessary treatment

12. Positive changes directly affecting physicians • Treating physician may petition for a TDO • Treating physician may ask for an extension of an ECO for an additional 2 hours • Recommendations of treating or examining physician or psychologist is to be used as evidence in commitment process • Any provider disclosing information pursuant to the new provision shall be immune from liability for any harm resulting from the disclosure unless it was intended to harm or if they acted in bad faith. • Health care provider or CSB shall not be required to encrypt any email containing medical records or information sent to a magistrate unless there is reason to believe that a third party will attempt to intercept.

13. Emergency Custody Orders Evidentiary Considerations • Magistrate may consider: • Recommendations of treating or examining physician or psychologist • Past actions of the person • Past mental health treatment • Any medical records available • Affidavits if the witness is unavailable • Relevant hearsay

14. Emergency Custody Orders • ECO can now be extended for an additional 2 hours • ECO request for renewal can be requested by: • Family Member • CSB • Treating physician • Law enforcement officer • Magistrate may also renew ECO one time for up to 2 more hours if the magistrate finds good cause to grant the extension • Good cause includes CSB needing time to identify a facility or a medical evaluation

15. Temporary Detention Orders • Procedural Changes • Electronic Evaluation • CSB notice that the person not subject to TDO • Must notify petitioner and on-site treating physician • Evidentiary Considerations • Recommendations of treating physician • Past actions • Past mental health treatment • Medical Records available • Affidavits if the witness is unavailable • Any other relevant information

16. Temporary Detention Orders • TDO Duration • Shall be sufficient to allow for: • Completion of independent examination • Completion of pre-admission screening • Initiation of treatment to stabilize person’s psychiatric condition to avoid involuntary commitment where possible • Shall not exceed 48 hours or until close of business on the next day that is not a weekend or holiday

17. Independent Examiners • Qualifications of examiner • Psychiatrist or Psychologist licensed in Virginia and qualified to diagnose mental illness • If not available: • Licensed Clinical Social Worker • Licensed Professional Counselor • Psychiatric Nurse Practitioner • Clinical Nurse Specialist Will need to be qualified in assessing mental illness and complete a certification program by DMHMRSAS

18. Independent Examiners • Requirements • Comprehensive evaluation conducted in person • If not practicable, by two way electronic video • Translator if needed

19. Independent Examiners • Clinical assessment includes: • Mental status exam • Determination of current use of psychotropic meds • Medical and psychiatric history • Substance use or abuse • Determination of whether person meets 2nd prong of commitment criteria (lack of capacity) • Determination of person’s capacity to consent to treatment • Review of temporary detention facility’s records including • Treating physician eval • Lab or toxicology results • Any collateral information • All admission forms and nurses’ notes • Recommendation for the placement, care and treatment

20. Hearing Procedural Changes • Attendance • CSB • Independent Examiner and treating physician* • Evidentiary considerations • Recommendations of any treating physician or psychologist licensed in Va • IE’s certification • Past actions of the person • Past mental health treatment • Any health records available • Preadmission screening report • Any other relevant evidence admitted *may be reached telephonically

21. Hearing Procedural Changes • Removal of IE positive certification requirement • Judge or special justice must still consider the IE’s certification but law no long requires positive certification • Duration of inpatient treatment • Shall not exceed 30 days • Subsequent orders not to exceed 180 days

22. Other Changes • New Definitions (§ 37.2 -800) • Responsible person includes a family member, CSB, any treating physician or law enforcement officer • The term “community services board” includes “behavioral health authority” • HB 707 Execution of a TDO • Person shall remain in law enforcement custody until detained in secure facility or accepted by appropriate person at TDO facility • HB 1323 Specifies that a treating physician may petition to obtain a TDO

23. Next Steps • Supreme Court Commission • Workgroup with MSV, VHHA, AG’s Office, CSBs, etc • Carry over bills

24. Further Information • We are looking for feedback as these new laws are implemented. To submit comments or suggestions, please visit our website: http://www.govrel.vcu.edu/ • Also, please visit our website to get copies of the materials and the presentation

25. Our Website

26. Mental Health Law Reform Website

27. Mental Health Law Reform