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Mental Health Law: Civil Commitments in Virginia

By: Kevin McCandlish

[12.11.2020] Caring for a family member or loved one with a mental illness or mental health issue can bring forth various challenges. Ensuring that proper care and services are provided, particularly in emergency situations, can cause anxiety, grief, and concern for family members or caretakers alike. These worries are only exacerbated by the Commonwealth of Virginia’s process for administering psychiatric treatment or medication to an individual undergoing a severe mental health crisis, as civil commitment requires several steps and legal proceedings.

A psychiatric crisis can range from a sudden episode or material change in the stability of an individual’s mental health to acute suicidal or homicidal ideation, loss of mental or physical capacity or function, or uncontrollable impulses and non-reactionary fits or disturbances.

According to Virginia Code Ann. § 16.1-338, the legal age for a patient’s consent to hospitalization is 14 years old, meaning that a child under that age may be admitted “to a willing mental health facility for inpatient treatment upon application and with the consent of a parent.” VA Code Ann. § 16.1-338. A child or individual older than 14 years old must ordinarily consent to a joint application.

For admission to take place, one who is admitted to a mental health facility without their consent must have the “approv[al] by a qualified evaluator who has conducted a personal examination” within 48 hours. A series of written findings to include that the “mental illness [is] serious enough to warrant inpatient treatment” along with cause that they are “reasonably likely to benefit….” must also be present. For a minor admitted without their consent, their provider must prepare an individualized plan of treatment within ten days after their admission. A parent of a minor admitted without consent may also generally “revoke[] his [or her] consent at any time,” and the “minor shall be discharged within 48 hours to the custody of such consenting parent,” notwithstanding other specific situations and conditions.

Va Code Ann § 16.1-339 guides the process for parental admission for a minor over the age of fourteen who either objects to admission or “is incapable of making an informed decision.” Such individuals may be admitted for up to 120 hours, pending an examination conducted by a qualified evaluator within 24 hours of initial admission. A petition must thereafter be filed for judicial approval before the expiration of those 120 hours, after which the court will conduct a review of the criteria for admission, considering certain factors. Should the court find that the criteria for admission are met, an order shall issue that will authorize “continued hospitalization of the minor for up to 90 days based on the parent’s consent.”

This can be a daunting process, particularly for self-represented litigants and caretakers, who must file and coordinate with several mental health professionals, hospitals, legal entities, and court officials. A court may also deem the information provided pursuant to these formal processes to be insufficient regarding whether the requisite criteria are met, in which case the court will schedule a commitment hearing, “conducted in accordance with the procedures specified in §§ 16.1-341 through 16.1-345.” The emotion, anxiety, and technical detail of such hearings can form a heavy burden. Representation by a lawyer familiar with such proceedings and one who has shepherded families and professionals through such processes previously can prove invaluable and a significant weight off of a family member’s shoulders.

To learn how our team can help, contact WhitbeckBennett by calling 800-516-3964 or by emailing clientservices@wblaws.com.

Related: Mental Health Law