Emergency Custody, Temporary Detention, and Involuntary Commitment

Virginia Code 37.2-808, 37.2-1103 defines the parameters of an ECO. An ECO is a court order issued by a Magistrate or initiated by a Law Enforcement Officer when there is probable cause to believe a person has a mental illness or a substance use disorder and:

• There exists a substantial likelihood that as a result of mental illness or substance use disorder the person will, in the near future:

• Cause physical harm to themselves or others as evidenced by recent behavior causing, attempting, or threatening harm, or
• Suffer serious harm due to their lack of capacity to protect themselves from harm or to provide for their basic human needs and self-protection,

• Is in need of hospitalization or treatment, and
• Is unwilling to volunteer or incapable of volunteering for hospitalization or treatment.

An ECO authorizes Police to assume civil custody of the individual so that the individual receives a specific mental health assessment (known as a Prescreening) performed by a Certified Pre-screener at the Arlington Community Services Board.

In Arlington County, the County, as represented by Community Services Board staff, typically serves as the “Petitioner” for an Emergency Custody Order. However, Virginia Code allows any “responsible person” to provide a “sworn petition” to the Magistrate requesting that an ECO be issued. The person requesting the ECO is known as the Petitioner. The Petitioner must go in person to the Magistrate’s office to fill out the petition. Magistrates are available every day of the year, 24 hours a day.

Virginia Code also allows for Law Enforcement Officers to initiate an ECO, without involving the Magistrate, based on their observations or based upon the reliable reports of others. A police-initiated ECO is referred to as a "paperless ECO" or an "officer-initiated ECO" because police can take the individual into custody without prior authorization of the Magistrate or the necessity of a petition.

The ECO authorizes law enforcement to take a person into legal custody for up to 8 hours and transport them to the location where a CSB Certified Prescreener will perform a mental health evaluation. Law enforcement will typically transport the individual to either a community-based Crisis Receiving Center or a hospital Emergency Department for the evaluation. When law enforcement takes custody of an individual, they usually place the person in handcuffs.

A Certified Prescreener will interview the individual (either in person or virtually) and also will collect pertinent information from sources such as family, police, available medical records, private providers, etc. Medical tests or treatment may be provided during the time the person is under an ECO. Based on available information, the Prescreener will assess:

• Whether the individual is exhibiting signs and symptoms of a mental illness or substance use disorder.
• Whether as a result of mental illness or substance use disorder, the individual is likely to present a risk to self or others in the near future or is unable to care for themself.
• Whether the individual has capacity to make an informed decision about their care.
• What is the least restrictive level of care necessary for the safety and well-being of the individual.

“Level of care” refers to the continuum of mental health or substance use disorder supports and services that are available to an individual. The highest level of care is considered an involuntary hospitalization. Examples of lower levels of care might include voluntary hospitalization, crisis stabilization, outpatient services, safety contracts, or observation/supervision by a responsible person in the individual’s life.

The level of care needed to manage safety will be discussed with the individual and family. If it is determined that hospitalization is the most appropriate level of care, the individual is given the opportunity to agree to voluntary hospitalization. However, if the individual is not able or is not willing to make this choice, the Prescreener requests a second order called a Temporary Detention Order (TDO) from a Magistrate.

If the Prescreener determines that a TDO is necessary, the individual will need medical clearance in order to be admitted to a psychiatric hospital. The medical clearance usually occurs in a hospital emergency room. The results of the tests are sent to the TDO facilities that are considering admission. If the evaluation did not occur in a hospital emergency room, CSB staff will coordinate transportation to a hospital Emergency Department.

The Virginia Code 37.2-809 defines the parameters of TDOs. A TDO is a court order issued by a Magistrate that requires an individual to be held in a psychiatric facility for a period, with some exceptions, of up to 72 hours, until a commitment hearing is held. How long the person is hospitalized before the hearing occurs depends upon when the TDO is issued and executed and whether there is an intervening weekend or legal holiday. Magistrates are available every day of the year, 24 hours a day.

A TDO is issued only after completion of an in-person assessment by a certified Prescreener within the previous 72 hours. To issue the TDO, the Magistrate must decide that, based on all the evidence readily available, the individual:

1. Has a mental illness and that there exists a substantial likelihood that, as a result of that mental illness, the person will, in the near future:
   • 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
   • Suffer serious harm due to their lack of capacity to protect themselves from harm or to provide for their basic human needs, and
2. Is in need of hospitalization or treatment.
3. Is unwilling to volunteer or incapable of volunteering for hospitalization or treatment.

Defining “serious physical harm,” “serious harm,” and “basic human needs” is a matter for each Magistrate and Certified Prescreener to determine. Typically, they look for evidence that the individual is engaging in behavior that could result in physical injury, disability or death, or could result in physical or legal harm because they are not caring for themselves or providing for their food, clothing or shelter.

Prior to issuance of the TDO, the Certified Prescreener is required to ascertain the health insurance status of the individual and determine the facility where they will be hospitalized. If the Magistrate issues a TDO, the results of the mental health assessment, as documented in the prescreening report, are sent to the hospital.

The TDO is a legal document which allows police, other law enforcement, or a Magistrate- approved alternative transportation provider, to transport an individual to a psychiatric hospital where he or she will undergo further assessment and treatment until a Civil Commitment Hearing can take place.

Youth under the age of 14

A minor 14 years of age or younger can be admitted to a psychiatric hospital solely upon the application and consent of a parent. Since the youth does not need to consent or agree to the admission, a TDO is not needed to have the youth hospitalized.

Youth 14 years of age or over, nonobjecting

A minor 14 years of age and older who does not object to admission to a psychiatric hospital can be admitted upon the joint application and consent of the youth and a parent. Since the youth is agreeing to the hospitalization, this is considered a “voluntary” admission and therefore a TDO is not needed.

Youth 14 years of age or over, objecting

A minor 14 years of age and older who (1) objects to admission to a psychiatric hospital, or (2) is incapable of making an informed decision about treatment can be admitted solely upon the application and consent of a parent for up to 96 hours. Issuance of a TDO is not needed but the admission must be subsequently approved by the Juvenile and Domestic Relations District Court. However, since the psychiatric facilities within Fairfax County are not willing to admit an “objecting” or “incapable” youth 14 years of age or older solely upon the application and consent of a parent, an admission under this part of the statute is not possible.  As a result, to have the youth admitted a TDO must be issued.

Once the TDO is issued, a police officer will serve the TDO.  Law enforcement personnel or a Magistrate-approved Alternative Transportation Provider will take the individual into custody, and transport them to the hospital, if they are not already there. During transportation to the hospital, police officers usually place the person in handcuffs. 

An attempt will be made to have the individual admitted to one of the psychiatric hospitals in or near Arlington County. However, this is not always possible. If a bed cannot be located in Arlington County, every attempt will be made to find an available bed as close to Arlington County as possible.

Typically, the commitment hearing is held within 72 hours of the TDO order.

The purpose of the Civil Commitment Hearing is to determine if the individual meets the legal criteria for further ordered treatment. Although somewhat less formal than other court proceedings, a Civil Commitment Hearing is a legal proceeding with a Special Justice presiding and a court appointed attorney representing the individual. It is important to recognize that this involuntary commitment process is a civil, not a criminal process.

Before a commitment hearing occurs, a qualified independent mental health evaluator conducts an evaluation of the individual and provides a written report to the Special Justice prior to the time of the hearing. The evaluator is often referred to as the Independent Evaluator because of the requirement that he or she not have a financial interest in the admission or treatment of the individual and no investment interest in the hospitals involved. The Independent Evaluator's report may be accepted into evidence at the Commitment Hearing unless objected to by the person or his attorney, in which case the Independent Evaluator shall attend the hearing in person or by electronic communication. The original Prescreening report is also entered into evidence. Civil commitment hearings are open to the public.

In Arlington County, since the County (through CSB staff) typically acts as Petitioner, CSB staff will be present at the Commitment Hearing. Family members and witnesses are contacted prior to the hearing and are able to participate virtually or in person, depending on preference. Witnesses are asked to provide first hand knowledge of the incident(s) that lead to hospitalization. Witnesses are not required to be present at the hearing. Witnesses will be contacted prior to the hearings .to provide details per attendance.

To order an individual into treatment, the Special Justice must find by clear and convincing evidence that the individual has a mental illness or a substance use disorder, and there exists a substantial likelihood that as a result of mental illness, this individual will in the near future cause serious harm to him/herself, or suffer serious harm due to his/her lack of capacity to protect him/herself from harm or provide for his/her basic needs. The Special Justice must also find that less restrictive alternatives to involuntary inpatient treatment that would offer an opportunity for improvement of the person's condition have been investigated and have been determined to be inadequate to meet safety needs.

Under Virginia Law, the individual who is under the TDO is provided a court-appointed attorney prior to the Commitment hearing. The court-appointed attorney is required to represent the individual's wishes. This means that if the individual wants to be released, the attorney will advocate for this and will challenge the evidence and testimony from others that the individual requires hospitalization.

Prior to beginning the hearing, the Special Justice asks the court-appointed attorney if the individual would like to request voluntary hospitalization. According to the law, the detained individual has a right to request voluntary hospitalization at this point in the process. The exception to this is when the Magistrate determines that the individual lacks the capacity to make an informed decision. If the individual requests the voluntary hospitalization option, no hearing is held and therefore there is no need for testimony. This option is called a "Court Mandated Admission" or CMA. A CMA means that the individual makes an agreement with the court to stay in the hospital for three to five days, and to follow treatment recommendations. At the 72-hour mark, the patient can request discharge, and the treating MD has up to 48 hours to discharge the patient. The person can be discharged at any time that the treating MD determines appropriate. The treating MD can also request further evaluation at the end of the CMA time period if the person is not stabilized and there is concern about the suitability of discharge from the hospital.

If the individual does not request voluntary hospitalization, the Special Justice convenes the hearing. He/she will review the Prescreening Form, as well as the Independent Evaluator's report, and may listen to testimony from the Petitioner, family, friends, and/or the detained individual him/herself.

When providing testimony, it is important for family/friends to report about the behaviors or events that led to the individual’s original detention, so the Special Justice has as much information as possible in order to make an informed decision about the need for treatment.

The Special Justice conducts the hearing and determines the final outcome of the hearing.

The court-appointed attorney, at State expense, represents the individual at the hearing. The attorney is required to “represent the wishes of his client.” This means that if the individual wants to be discharged from the hospital, the attorney will challenge the opinion and testimony of those who think they should remain in the hospital. Before the hearing, the attorney may obtain information by interviewing the individual, the Petitioner, the Independent Evaluator and any witnesses, and by reviewing relevant treatment records and reports. 

The Independent Evaluator is usually a mental health clinician, licensed in Virginia, who is skilled in the diagnosis and treatment of mental illness. Before the hearing, the Independent Evaluator conducts an evaluation of the individual in order to provide an “expert clinical opinion” about whether the individual has a mental illness and whether there is a substantial likelihood that, as a result of the mental illness, the individual will, in the near future:

1. Cause serious physical harm to self or others, or
2. Suffer serious harm due to their lack of capacity to protect themselves from harm or to provide for their basic human needs.

The Independent Evaluator will also provide clinical opinions about what type of treatment the person needs and whether or not that treatment should be ordered by the court.

The court-appointed attorney, at State expense, represents the youth at the hearing. According to the Code of Virginia the attorney is obligated to “articulate the wishes of the minor” and “fully represent the minor in the proceedings.” This means that if the youth wants to be discharged from the hospital, the attorney will challenge the opinion and testimony of those who think the youth should remain in the hospital. Before the hearing, the attorney obtains information by interviewing the youth, the youth’s parents, the Petitioner, the Independent Evaluator, any witnesses and by reviewing diagnostic and treatment records. During the hearing, the attorney’s role is to present witnesses on behalf of the youth and to cross-examine opposing witnesses.

The Guardian ad litem is another attorney who, at State expense, represents what is, in the Guardian ad litem’s professional judgment, in the best interest of the youth. Before the hearing, the Guardian ad litem obtains information by interviewing the youth and reviewing the petition, the Prescreening and the Independent Evaluator’s report, and ascertains the views of the youth, the youth’s consenting parent(s), the Independent Evaluator, and the attending psychiatrist. The Guardian ad litem also makes a recommendation about what disposition should be put into effect.

According to the Code of Virginia, if the parent or parents with whom the minor resides are not willing to approve the proposed commitment, the commitment to inpatient treatment can be ordered only if the Special Justice determines:

1. That the youth meets the commitment criteria, and
2. That such treatment is necessary to protect the youth’s life, health, safety, or normal development.

The Special Justice may also issue a court order directing either or both of the youth’s parents to comply with reasonable conditions relating to the youth’s treatment if it is determined that such an order is in the best interests of the youth.

According to the Virginia Code, the Special Justice, in addition to his “observations” of the individual, may consider the following evidence when making his decision about the outcome of the hearing:

• The recommendations of any treating or examining physician or psychologist licensed in Virginia, if available
• Any past actions of the person
• Any past mental health treatment of the person
• Any examiner’s certification
• Any health records available
• Testimony of the Petitioner and any witnesses
• The preadmission screening report
• Any other relevant evidence that may have been admitted

During the hearing, the individual is not required to testify but may choose to do so. 

Once the commitment hearing begins, the possible outcomes include:

Dismissal of the Petition – If the Special Justice decides that a technical error occurred during the issuance of the TDO, they may dismiss the petition for involuntary hospitalization. The petition can also be dismissed if the Special Justice decides that the evidence is not strong enough to order a commitment. When the petition is dismissed, the individual is free to leave the hospital and is under no legal obligation to receive any type of psychiatric treatment. Dismissal of the petition does not prevent the individual from voluntarily staying in the hospital if they agree to remain in the hospital and are accepted for admission.

Release — If the Special Justice determines the person does not meet the criteria for further court-ordered treatment, the person may be released from the hearing.

Commitment – When the Special Justice orders a commitment, the individual is under a court order to be involuntarily admitted to the hospital and is required to remain in the hospital for a maximum period of 30 days.

Re-Commitment – Occurs when another TDO is issued prior to the expiration of the original commitment order and a second commitment hearing is held. If the individual is “re-committed” at that hearing, the duration of the commitment is a maximum of 180 days.

An individual can appeal a commitment or recommitment order to the Circuit Court. The appeal must be filed within 10 days of the court order.

Mandatory Outpatient Treatment (MOT) – The Special Justice can order the individual to participate in a period of outpatient treatment. This is referred to as Mandatory Outpatient Treatment (MOT). The duration of the MOT is determined by the Special Justice based on the recommendations of the CSB but cannot exceed 180 days. When MOT is ordered, the patient is released from the hospital and is free to go after the commitment hearing. To order MOT, the Special Justice must find, by clear and convincing evidence, that:

• The individual has a mental illness and 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 themselves 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 their lack of capacity to protect themselves from harm or to provide for their basic human needs; and
• The less restrictive alternatives to involuntary inpatient treatment have been investigated and are deemed appropriate; and
• The individual (a) has sufficient capacity to understand the stipulations of their  treatment, (b) expresses an interest in living in the community and agrees to abide by their treatment plan, and (c) is deemed to have the capacity to comply with the treatment plan and understand and adhere to conditions and requirements of the treatment and services; and
• The ordered treatment can be delivered on an outpatient basis by the CSB or designated provider.

When an individual is ordered to participate in MOT, their compliance with treatment is monitored by the CSB where the individual resides. Failure of the individual to adhere to the terms of the outpatient treatment could result in a revocation of the MOT and an order for commitment to a hospital. Before the MOT expires, it can be continued for a period not to exceed 180 days, or it can be rescinded. The MOT order can also be appealed to the Circuit Court. The appeal must be filed within 10 days of the court order.

At the time that the person is committed at the hearing, the Special Justice may authorize the treating physician to place the person on a period of MOT when they are discharged from the hospital. This is less formally referred to as a “step-down” MOT.

To authorize the “step-down” MOT, the Special Justice must find by “clear and convincing evidence” that:

1. The person has a history of lack of compliance with treatment for mental illness that at least twice within the past 36 months has resulted in the person being subject to an order for involuntary admission.
2. In view of the person’s treatment history and current behavior, the person is in need of mandatory outpatient treatment following inpatient treatment in order to prevent a relapse or deterioration that would be likely to result in the person meeting the criteria for involuntary inpatient treatment.
3. As a result of mental illness, the person is unlikely to voluntarily participate in outpatient treatment unless the court enters an order authorizing discharge to mandatory outpatient treatment following inpatient treatment.
4. The person is likely to benefit from mandatory outpatient treatment.

The assessment conducted by the Independent Evaluator must also include a clinical opinion about whether the person meets the criteria for a “step-down” MOT.

Prior to discharging the person to MOT, a discharge plan must be developed by the treating physician and the hospital staff in conjunction with the CSB and the person. The plan must be submitted to the Court for approval, incorporated into the commitment order, and provided to the person. The person should not be discharged to MOT if he/she meets the criteria for involuntary commitment. In addition, the treating physician, based on his professional judgment, must determine that the person:

1. In view of their treatment history and current behavior, no longer needs inpatient hospitalization.
2. Requires mandatory outpatient treatment at the time of discharge to prevent relapse or deterioration of their condition that would likely result in their meeting the criteria for involuntary inpatient treatment.
3. Has sufficient capacity to understand the stipulations of their treatment.
4. Has expressed an interest in living in the community and has agreed to abide by their discharge plan.
5. Is deemed to have the capacity to comply with the discharge plan and understand and adhere to conditions and requirements of the treatment and services.
6. The ordered treatment can be delivered on an outpatient basis by the CSB or designated provider.

It must also be determined that the treatment services are actually available in the community and the providers of those services have actually agreed to deliver the services.

Finally, if a person is placed on “step-down” MOT,  his/her compliance with the discharge plan is monitored by the CSB where the individual resides. Failure of the individual to adhere to the terms of the discharge plan could result in a revocation of the “step-down” MOT and an order for commitment to a hospital. Also, before the “step-down” MOT expires, it could be continued for a period not to exceed 180 days or it could be rescinded.

CSB staff determine the hospital where the committed individual will be admitted. The individual may be able to stay at the hospital where they were admitted under the TDO or may have to be transferred to another facility. The determination is primarily based on health insurance coverage, bed availability, and whether or not a particular hospital will accept the individual for admission. All attempts will be made to have the individual hospitalized at a psychiatric facility in or near Arlington County. When an individual has to be transferred to another hospital, they are transported by Law Enforcement or an alternative transportation provider.

When an individual is hospitalized under a TDO and the individual is covered by private health insurance, Medicare, or Medicaid, the hospital can seek reimbursement from the third-party payor. In cases where the individual is not covered by a third-party payor and is demonstrably unable to pay the cost of treatment, the hospital can ask for reimbursement from the Commonwealth of Virginia’s. After the Commitment Hearing, the cost of all treatment is the responsibility of the individual even when they are committed or hospitalized as a CMA. When the individual is covered by insurance, they are admitted to a facility that accepts their insurance and the hospital will seek reimbursement from the third-party payor.

Uninsured individuals are usually referred for hospitalization to the Northern Virginia Mental Health Institute, a state facility, where the cost of treatment is determined by the person’s income level and ability to pay. If space is not available there, the individual may be admitted to a private facility using a state fund that covers the cost of the hospitalization. Concerns about the cost of treatment and the payment for treatment should be directed to a hospital social worker. 

Under the Virginia Code, simply being hospitalized under a TDO does not remove the right of the individual to own firearms. Whether or not that right is removed depends on what happens at the Commitment Hearing. The right is not lost if the TDO is dismissed. However, if the outcome of the hearing is anything other than dismissal, (for example, the individual is voluntarily hospitalized under a CMA, or is committed to inpatient treatment, or is ordered into MOT) the individual loses their right to “purchase, possess, or transport a firearm.” It then becomes illegal for the individual to “purchase, possess or transport a firearm,” a violation of which is considered a Class 1 misdemeanor. After their release from the CMA, the commitment, or the MOT, the individual can “petition” (ask) the General District Court to restore their right. 

Virginia Code Section 37.2-1104 (https://law.lis.virginia.gov/vacode/title37.2/chapter11/section37.2-1104/) defines the parameters of a Medical TDO

A medical TDO enables a treating physician to request an order from the Magistrate to temporarily detain an adult in a hospital for testing, observation and treatment, upon finding has a determining that

• The treating phsycian has attemted to obtain informed consent the person for treatment.
•  Probable cause exists to believe the person is incapable of making or communicating an informed decision regarding treatment of a physical or mental condition due to a mental or physical condition, including intoxication.
• The medical standard of care calls for observation, testing, or treatment within the next 24 hours to prevent injury, disability, death, or other harm to the person resulting from such mental or physical condition.

A Medical TDO cannot exceed 24 hours, unless extended by the court. If the physician determines during this period that the person has become capable of making and communicating an informed decision, the physician shall rely on the person's decision on whether to consent to further testing, observation, or treatment.

An individual who is already under an ECO may be ordered by a magistrate to be under a Medical TDO for testing, observation or treatment. In such a situation, the hospital provider is required to notify Arlington CSB when the testing, observation, or treatment is complete. When the CSB is notified, and before the Medical TDO order expires, a certified Prescreener will then conduct an assessment of the person to determine if they meet the criteria for a “regular” TDO.