Statement from Richard Bonnie on Va. Mental Health Law Reform Commission Report

December 21, 2007

Law professor Richard J. Bonnie is chair of Virginia's Commission on Mental Health Law Reform. Bonnie also directs the Institute of Law, Psychiatry and Public Policy at the University of Virginia.

This morning Virginia's Commission on Mental Health Law Reform released a preliminary report calling for a "down payment" on needed investment in community mental health services and recommending several major changes to the laws governing involuntary treatment.

Appointed in October 2006 by the chief justice of the Supreme Court of Virginia, Leroy Rountree Hassell Sr., the commission suggests priorities for the 2008 General Assembly session and also recommends a long-term plan for comprehensive reforms.

The commission was already conducting a major study of Virginia's mental health system when tragedy struck Virginia Tech on April 16. We accelerated our timetable to be in a position to follow up on the report of the Virginia Tech Review Panel, appointed by Virginia Gov. Tim Kaine. The Tech Review Panel specifically requested the Supreme Court's Commission to review its recommendations and then flesh them out if appropriate. An appendix to the commission's report presents its response to each of the Tech Review Panel's proposals.

I am pleased that the governor and the bipartisan leadership of the General Assembly have announced their support for major initiatives in mental health in 2008. It would compound the tragedy at Virginia Tech if we fail to take advantage of this opportunity for reform.

Among the Commission's high-priority recommendations for legislative consideration during the upcoming legislative session is eliminating the requirement that a person be shown to be an "imminent danger" to himself or others before involuntary hospitalization can be ordered. The commission's proposed criteria were endorsed by Gov. Kaine last week. Under the commission's proposal, a mentally ill person would be subject to involuntary treatment if:

(a) there is a substantial likelihood that, in the near future, he or she will cause serious physical harm to himself or herself or another person, as evidenced by recent behavior causing, attempting or threatening such harm; or

(b) there is a substantial likelihood that, in the near future, he or she will suffer serious harm due to substantial deterioration of his or her capacity to protect himself or herself from such harm or to provide for his or her basic human needs.

The commission's report emphasizes that the current statute is given widely varying interpretations in different localities and that the proposed language aims to provide more guidance to judges.

The report also recommends specific procedures for implementing outpatient treatment orders like the one issued, but not enforced, in the case of Virginia Tech gunman Sueng Hui Cho. Specifically, the commission recommends that legal barriers to disclosure of information needed to monitor such orders be removed and that patients suspected of violating treatment orders be subject to a mandatory examination. The commission cautions, however, that use of mandatory outpatient treatment should not be increased unless and until adequate community resources are in place to provide the treatment and monitor the orders.

Other proposed reforms aim to facilitate more informed evaluations of people subject to the involuntary commitment process, including authorizing disclosure of information by treatment providers to participants in the commitment process and requiring the community services staff and the independent clinical examiner to attend commitment hearings. Neither the Community Services Board staff nor the independent examiner attended Cho's December 2005 commitment hearing.

One of the major complaints with the current commitment process concerns transporting patients. Law enforcement officers don't like it because they spend so much time waiting for people in emergency departments and other mental health facilities while people in their custody are being examined and while Community Services Board staff are trying to find a hospital bed for those who need hospitalization. Patients and their families don't like it because the patients are typically handcuffed, transported in police vehicles, and find the whole process dehumanizing.

The commission recommends that the General Assembly give a high priority to funding crisis-stabilization programs in all regions of the state, and that law enforcement officers be authorized to transfer custody to properly licensed mental health facilities during the evaluation process.

The commission's recommendations for legislative action in 2008 are presented in the context of a broader set of proposals that the commission calls "A Blueprint for Comprehensive Reform." These proposals will be studied further by the commission over the next year.

One of the issues addressed in the "Blueprint," but not included in the priorities for 2008, is lengthening the current 48-hour period for evaluating a patient before a hearing must be held. Virginia's evaluation period is the shortest in the nation, and the commission believes that a four- or five-day period of stabilization will reduce the need for commitment, reduce the average length of hospitalization and reduce overall costs. However, we need to study these questions in more depth before making a firm recommendation.

Other key components of the 30-page "Blueprint" include:

  • Investing in community mental health services over the next six years so that every citizen of Virginia has access to core services.
  • Strengthening the role of the state Department of Mental Health, Mental Retardation and Substance Abuse Services in establishing standards and expectations for community mental health services.
  • Empowering people with mental illness to execute advance directives regarding their health care when their capacity to make decisions on their own behalf is impaired, thereby giving them a meaningful measure of control over the treatment that they receive, even when they are in crisis.
  • Requiring greater oversight of the commitment process by the Supreme Court of Virginia.
  • Coordinating law enforcement agencies, courts and mental health stakeholders in each community to divert people with mental illness from the criminal justice system.
  • Assuring children with mental health needs and their families access to services in their communities, reducing costly and ineffective placements in residential facilities and unwarranted use of the juvenile justice system as a means of accessing services.
  • Increasing the number of child psychiatrists and child psychologists in the state.

The commission was directed by the chief justice to conduct a comprehensive examination of Virginia's mental health laws and services. Specific goals include reducing the need for commitment by improving access to mental health services, reducing criminalization of people with mental illness, making the process of involuntary treatment more fair and effective, enabling consumers of mental health services to have more choice over the services they receive, and helping young people with mental health problems and their families before these problems spiral out of control.

Commission members include officials from all three branches of state government as well as representatives of many private stakeholder groups, including consumers and their families, service providers and the bar.

Public hearings are planned for the early summer of 2008 and the commission will submit its final report in the fall of 2008.

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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