HD8 - Review of the Involuntary Commitment Process

  • Published: 1995
  • Author: Joint Legislative Audit and Review Commission
  • Enabling Authority: Appropriation Act - Item 15. (Special Session I, 1994)

Executive Summary:
Involuntary commitment is a process by which an individual with a mental illness, who is a danger to self or others, or who is unable to care for self, may be temporarily detained and committed to a hospital on an involuntary basis following a hearing. In the United States, there is no federal law or process which specifically addresses involuntary civil commitment. Involuntary commitments are governed by State laws.

The Code of Virginia, in § 37.1-67.1 through § 37.1-90. directs the adult involuntary commitment process in the Commonwealth. There are two major stages in the process: (1) the petition and pre-hearing detention period, and (2) the involuntary commitment hearing. The statutes allow for a short period of involuntary temporary detention during which time the individual is evaluated. The results of the evaluation are the basis for the outcome of the involuntary civil commitment hearing. Unlike many other states. Virginia has established an involuntary mental commitment (IMC) fund to pay for the medical and legal costs associated with the temporary detention period and the involuntary commitment hearings.

Item 15 of the 1994 Appropriation Act continued a study mandate which directed JLARC to "examine the fiscal issues related to the Involuntary Mental Commitment Fund and the operational and policy issues involving the involuntary mental commitment process." The mandate further directs JLARC to make recommendations which are designed to promote efficiencies in the process.

Overall, the Virginia involuntary civil commitment process serves to protect an individual's due process rights. However, there are some areas in which the process could be improved. For example, variations in the process may result in individuals being involuntarily detained who do not present behaviors indicative of mental illness. The recommendations presented in this report build on the strengths of the Virginia process while addressing some current deficiencies in the process. The major findings of this report are:

• Through more efficient and effective use and oversight of the involuntary commitment fund, an estimated annual fund savings of almost $1 million (with net State savings of more than $500,000) are potentially achievable.

• Although Code of Virginia statutes governing the process provide important safeguards, it appears that process improvements could be made to promote equitable treatment of candidates for commitment, and to promote greater efficiency through improved procedures for determining who needs to be detained and held for a commitment hearing.

• Due to the public safety issues involved, law enforcement officers should continue to have a role in the transportation of individuals during the process, but there may be opportunities to reduce the number of transports required.

• Compared to processes in some other states, Virginia's involuntary commitment process has some strengths, including a shorter period of detention prior to the commitment hearing; however, the comparison indicates some areas of weakness, such as pre-screening for detention, detention criteria, and hearing oversight.

• Judicial decisions within the involuntary commitment process are made within the context of available mental health services and decision-makers within the process raise concerns about the availability of treatment alternatives.

Improved Fund Oversight Could Achieve Cost Savings

JLARC staff found that the Supreme Court needs to improve its oversight of the involuntary mental commitment fund. Additional oversight is necessary to ensure that funds are being utilized efficiently and effectively. In fact, JLARC staff estimate that the involuntary mental commitment fund could save nearly $1 million in hospital payments annually (see table on page III of this report) if more controls are placed on the fund and if policies regarding treatment of Medicaid recipients were developed. Of this amount, the estimated net State savings are more than $500,000. These savings are based on reducing the practice of placing Medicaid recipients who are involuntary commitment candidates in hospitals that are not Medicaid eligible and on eliminating the erroneous billing for services, such as double-billing. Recommendations related to achieving these fund savings and enhancing fund oversight include: requiring the local community services boards (CSBs) to determine patient insurance status and to ensure its consideration in determining hospital placements; providing instructions to all special justices regarding the appropriate completion of hearing invoices, with provisions for periodic invoice reviews for verification purposes; and having the Supreme Court maintain overall responsibility for the fund but contract with the Department of Medical Assistance Services (DMAS) to review and make payments for the medical and hospital portions of the fund.

Some Process Improvements Are Needed to Promote Equity and Efficiency

JLARC staff reviewed issues pertaining to the detention, evaluation, and hearing procedures for involuntary commitment in Virginia. This review indicates a number of concerns that need to be addressed to promote greater equity in the quality of the hearings available to potential commitment candidates, as well as to obtain efficiencies through better ensuring that those initially detained and those held for a commitment hearing are indeed likely candidates for commitment.

Temporary Detention Process Not Always Utilized as Intended. A number of study findings indicate that the temporary detention process needs to be refined to ensure that only individuals who are actual candidates for commitment are detained. For example, under current statutory provisions, special justices are allowed to issue a temporary detention order (TDO) without consulting a mental health professional. In some areas of the State, individuals are being detained without a mental health evaluation, by the order of special justices who lack mental health training, and are often times authorizing the request over the telephone. Since many requests for temporary detention orders are made by family members and adult homes for individuals who do not meet the statutory commitment criteria, an evaluation by a CSB staff member is needed to pre-screen all requests for temporary detention orders.

The criteria for temporarily detaining an individual are less stringent than the criteria for involuntary commitment, which allows for inappropriate use of the process. As a result, individuals may be detained who are neither a danger to themselves or others, nor unable to care for themselves and who do not need in-patient psychiatric hospitalization.

Although hospitals have the authority to determine the time of release of patients after commitment, the Code of Virginia lacks provisions that would enable hospitals to provide for the release of individuals during the temporary detention period who no longer require hospitalization. Some hospitals, apparently as "allowed" by the special justices in the area, are releasing individuals prior to a commitment hearing if the individuals no longer meet the detention criteria and would not present an imminent danger to themselves or others if released. This practice appears to be appropriate, but is not provided for in the Code.

To address these issues, a number of recommendations have been developed. These recommendations include: requiring that CSB staff conduct in-person pre-screening evaluations for all individuals for whom TODs are requested prior to their issuance; amending the Code so the standard for issuing emergency custody orders (ECOs) and TODs would be probable cause that the individual meets the commitment criteria and is incapable of or unwilling to volunteer for treatment; and amending the Code to explicitly allow hospitals to release a patient prior to the commitment hearing if the patient no longer meets the detention criteria and would not present an imminent danger to self or others if released.

Commitment Hearing Procedures Need More Consistency and Oversight. There are few written guidelines to direct the implementation of the statutory sections addressing involuntary commitment hearings. Consequently, a substantial inconsistency in hearing procedures has been noted in some prior reviews of involuntary commitment in Virginia and has been noted again in this report. Inconsistencies exist in areas such as: the conduct of the preliminary hearing; the priority placed upon having petitioners, family members, or others present and available as witnesses; the independence and participation of the mental health examiner; the role of CSB staff in commitment hearings; and the role of the patient's attorney. There also appear to be substantial variations in the availability of alternatives to commitment, which impact the ability of decision-makers to find less restrictive alternatives than hospitalization.

Procedural changes and oversight of the involuntary commitment hearings are needed. Detailed recommendations to address these needs are identified in the report. Among them are recommendations designed to simplify and clarify the process, to provide additional information and/or training related to the role of various participants in the process, and to provide a record of the proceedings to better facilitate oversight and accountability.

Reduction in Transports Is Possible, But Law Enforcement Involvement Is Needed

Law enforcement officers should continue to transport individuals under ECOs and TDOs, because the process is often initiated by an officer and the dangerousness of the individual may not be known. The changes recommended in this report, however, should improve the efficiency of the process, reduce the number of detentions, and thereby reduce the number of transports by law enforcement officers. In addition, following the commitment of an individual, it appears that other modes of transportation may be available. The detention period allows time for assessment and stabilization of the patient. Some other states already utilize alternatives for transporting committed patients, including the use of hospital vehicles, ambulances, and private contract providers. The increased use of transportation alternatives appears to be possible but will require careful, responsible consideration of the dangerousness of each patient to be transported.

Strengths and Weaknesses in Virginia's Process Also Indicated by Other State Comparison

For this study, a survey and statutory review were conducted for selected states in the southeast region, as well as states recognized nationally for their mental health systems. This review indicated several areas where Virginia's process appears to meet or exceed the efficiency and effectiveness of the processes in other states. In other areas, the comparison suggested some deficiencies and some potential alternatives, converging with and reinforcing JLARC study observations about Virginia's process.

The comparison indicated a number of positive aspects of Virginia's approach. For example, Virginia's process detains individuals for a relatively short period of time prior to holding a commitment hearing. The involuntary commitment fund in Virginia is unique, enables individuals where necessary to be detained at private hospitals even without insurance coverage, and reduces the financial responsibility of the individuals to pay for their own involuntary detention or commitment. Conversely, the comparison also indicates that a number of other states have detention criteria that are more consistent with their commitment criteria, require a mental health evaluation prior to detention, and keep records on the proceedings that can be used in general oversight of the process.

Process Decision-Makers Cite Concerns About the Availability of Alternatives

The involuntary commitment process operates within the broader context of what alternative community mental health services are available to meet the needs of candidates for involuntary commitment. The exercise of State authority to involuntarily detain individuals and involuntarily commit them to hospitalization should be reserved for situations in which the individual's mental illness and dangerousness or inability to care for self is compelling. However, involuntary commitment literature indicates that in actuality, decision-makers in the process are reluctant to ignore patient needs and release patients to living arrangements that are not deemed viable. This may result in a tendency of the process to over-commit to hospitalization if there is a lack of viable community alternatives.

A 1986 JLARC report on deinstitutionalization of mental health care found that substantial improvements had been made in Virginia's mental health system since 1979, but that at the local level there was still an overwhelming need for a broader range of services. It was beyond the scope of this JLARC study of the involuntary commitment process to examine the extent to which the availability of services may have improved or diminished since 1986. However, it was clear from this review that a substantial proportion of decision-makers within the involuntary commitment process indicate a concern about the options available to them in making treatment decisions. For example, almost one-half of the special justices responding to a JLARC survey indicated their belief that adequate outpatient treatment options are not available to address the needs of individuals seen in commitment hearings. In addition, the justices indicated that outpatient treatment was not available at a nearby location 20 percent of the time that outpatient treatment was ordered.