Transcript Mental Health Law Reform - Office of Government Relations
Mental Health Law Reform
Office of the Vice President for Government Relations and Health Policy
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
Budget - $41.7 million Investment
2009 – 2010 MH Initiatives
Increase CSB Capacity for: Emergency Services Case Management Outpatient Clinicians/Therapists Jail Diversion Provide Outpatient Services to Children Expansion Monitoring and Accountability of CSBs Crisis Intervention Training Program Expand Licensing Staff
Biennium Budget
$28.3M
$6M $5.8M
$600K $600K $345K
Presentation Overview
Commitment Criteria Emergency Custody Orders Temporary Detention Orders Independent Examiners Hearing Procedural Changes Next Steps
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 himself
exists a substantial likelihood and that there 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…
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”
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)
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.”
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
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
”
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
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.
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
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
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
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
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
Independent Examiners
Requirements Comprehensive evaluation conducted in person If not practicable, by two way electronic video Translator if needed
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 2 nd commitment criteria (lack of capacity) prong of 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
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
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
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
Next Steps
Supreme Court Commission Workgroup with MSV, VHHA, AG’s Office, CSBs, etc Carry over bills
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