HD71 - Admission of Minors to Psychiatric Facilities

  • Published: 1989
  • Author: General Assembly. Joint Subcommittee
  • Enabling Authority: House Joint Resolution 97 (Regular Session, 1988)

Executive Summary:
AUTHORITY FOR THE STUDY

House Joint Resolution No. 97, agreed to by the 1988 Session of the General Assembly, authorizes a joint subcommittee to examine the current law governing the admission of minors to psychiatric facilities and to develop such recommendations for improving the process as it determines to be necessary. The joint subcommittee is specifically directed to review the effects of current commitment statutes on the rights of minors and their parents, the efficacy of separate commitment laws for minors and adults, and the relationship between the availability of community services and the incidence of commitment of minors to inpatient facilities. The Joint Subcommittee is directed to complete its work and present its recommendations to the 1989 Session of the General Assembly. (Attachment 1)

BACKGROUND

The current focus on the issues presented by the admission and treatment of minors began with the Joint Subcommittee on Mental Health and Mental Retardation (HJR 10--1980; HJR 73--1982), which in 1982 studied Virginia's civil commitment laws. The Joint Subcommittee determined that attention to the laws as they applied to minors was needed but should be deferred while the basic statutory scheme was examined. The State Human Rights Committee assumed this project with the appointment of the Task Force on the Commitment Statutes Concerning the Psychiatric Hospitalization of Minors. The task force reviewed current statutes and recommended revisions, weighing state interests, parental interests, and minors' liberty interests. The task force considered children's chronological development and its effect on their decision-making skills and their family dependency needs. The task force agreed that, while minors have a liberty interest, it is qualitatively different from that of adults, and that the standard of commitment should not be the same as for adults. The task force issued its report in 1984, addressing several major issues:

• Informed consent requirements for voluntary admission of minors--Current statutory law, which does not distinguish between minors and adults, requires that minors give informed consent for voluntary admission. If they are incapable of giving such consent or object to admission, then they may only be admitted pursuant to involuntary commitment proceedings. This process does not account for the differences in minors' capacity to consent to treatment as they mature and necessitates the use of involuntary procedures for many children who are not capable of informed consent but who are not objecting or who may even desire hospitalization. The current law is frequently distorted to avoid hearings for this latter group.

• Procedures for involuntary placement of minors when they or their parents refuse consent for admission--There is a need to account for the differences in capacity among minors for exercising autonomy and in their attendant liberty interests, balanced against the relative responsibilities of parents and the state to exercise authority which is appropriate to a minor's age and maturity.

• Situations in which a judicial hearing is appropriate-Intervention may be justified when one custodial parent consents to admission and the other objects or when voluntary admission is by anyone other than a parent, such as a guardian or agency.

• Appropriateness of current commitment criteria--A child's liberty interest is not the same as an adult's; parents and the state have a responsibility for a child's welfare. In addition, the criteria of "unable to care for himself" is confusing as applied to children.

• Clarification of procedures for admission to private hospitals--Regulations of the Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) governing admission of minors apply only to state-operated facilities.

In 1985, a legislative proposal was developed based on the recommendations of the task force, but action on the bill was delayed to deal with concerns of the Office of the Attorney General. Work on this legislation continued after the 1985 legislative session, with the Virginia Bar Association's Committee on the Mentally Disabled and the Institute of Law, Psychiatry and Public Policy at the University of Virginia assuming the task in 1987. These latest efforts resulted in HB 414, the Mental Health Treatment of Minors Act, introduced by Delegate Warren Stambaugh in the 1988 Session of the General Assembly. That legislation was carried over to the 1989 Session by committee for more detailed consideration in the study authorized by House Joint Resolution No. 97.

ACTIVITIES OF THE JOINT SUBCOMMITTEE

In responding to its charge as set forth in HJR 97, the joint subcommittee reviewed current law governing the commitment of minors and past efforts at addressing these issues. It reviewed the findings and recommendations of the State Human Rights Committee's Task Force on the Commitment Statutes Concerning the Psychiatric Hospitalization of Minors with the task force chairman, Dr. Beth Merwin. The task force's findings are discussed above.

The joint subcommittee reviewed the history of the development of the Mental Health Treatment of Minors Act, introduced and carried over in 1988 as HB 414. Professor Richard Bonnie, Director of the Institute of Law, Psychiatry and Public Policy, John S. Battle Professor of Law at the University of Virginia and chair of the Virginia Bar Association Committee on the Mentally Disabled, which developed the legislation, described its provisions, comparing them to the recommendations of the task force. Working on the premise that there is consensus that the commitment process for minors requires improvement, Professor Bonnie reviewed the range of approaches available for hospitalizing minors, highlighted the key issues that must be resolved in any approach, and explained how HB414 deals with these issues.

The joint subcommittee agreed that it needed to gather data on current practices and policies regarding the commitment of minors in both the public and private sectors in order to determine the extent of any problems posed by the current statute and practice. Such a study was undertaken by the Institute of Law, Psychiatry and Public Policy, with the assistance of the Department of Mental Health, Mental Retardation and Substance Abuse Services and the Virginia Hospital Association. The findings are discussed in detail later in this report.

The Department of Mental Health, Mental Retardation and Substance Abuse Services (MHMRSAS) provided assistance and information to the joint subcommittee throughout the study. .Responsible for administration of public psychiatric facilities and for licensure and certification of private psychiatric facilities in the Commonwealth, the Department provided expertise and a useful perspective on the issues presented. The Department assisted the joint subcommittee with a survey of persons involved in the minors' admissions process with regard to their view on current law and HB 414. The responses provided a helpful initial focus on the issues.

The joint subcommittee benefitted from the informal comments and formal testimony of medical, mental health and legal professionals in both the public and private sectors. These included the Virginia Bar Association and members of the judiciary; medical practitioners appearing individually or representing the Division of Child Psychiatry at MCV, the Richmond Psychiatric Society, and the Virginia Council of Child Psychiatry; the Virginia Hospital Association; the Institute for Law, Psychiatry and Public Policy of the University of Virginia; state agencies including the Department of MHMRSAS, the Office of the Attorney General, the Office of the Executive Secretary of the Supreme Court of Virginia, the Department for Children and the Department for Rights of the Disabled; the Virginia Association of Community Services Boards; advocacy groups including the Virginia Alliance for the Mentally Ill, the Mental Health Association in Virginia and the Mental Health Association of Northern Virginia; the American Civil Liberties Union and its Mental Health Law Project; and several parents of children committed for inpatient mental health treatment.