Legal Code Sections: What Do They Mean?
Most patients admitted to the Central State Hospital Forensic Unit are admitted from jails or courts by court-order. Each type of court order is authorized by a specific section of the Code of Virginia, and determines the reason for the patient’s admission.
19.2-169.1 - Evaluation of Competency to Stand Trial
19.2-169.2 - Restoration to Competency to Stand Trial
19.2-169.3 - Disposition of Incompetent Defendants
19.2-169.5 - Mental Status at the Time of the Offense
19.2-169.6 - Emergency Treatment Prior to Trial
19.2-168.1 - Mental Status at the Time of the Offense requested by the Commonwealth’s Attorney
19.2-176 - Emergency Treatment or Evaluation after Conviction but before Sentencing
19.2-177.1 - Emergency Treatment after Sentencing
19.2-182.2 - Temporary Custody and Evaluation of NGRI
19.2-182.3 - Hearing on Temporary Custody Evaluations NGRI
19.2-182.5 - Continuation of Confinement NGRI
19.2-182.6 - Petition for Conditional Release of NGRI
19.2-182.7 - Conditional Release of NGRI
19.2-182.8 - Revocation of Conditional Release of NGRI
19.2-182.9 - Emergency Revocation of Conditional Release of NGRI
19.2-182.10 - Return of Revoked NGRI to Conditional Release
19.2-182.11 - Modification and Removal of Conditions (NGRI )
19.2-182.13 - Forensic Review Panel (NGRI )
37.2-809 through 813 - Emergency Custody and Temporary Detention Orders
37.2-814 through 819 - Voluntary or Involuntary "Civil" Commitment
Legal Code Descriptions
19.2-169.1: Evaluation of Competency to Stand Trial
This section is an order for an evaluation of someone’s competency to stand trial on a criminal charge. The evaluation may be conducted on an "outpatient" basis, where the defendant is evaluated while in jail, or, if the court has released the defendant on bond, the defendant can report to the doctor’s office for the evaluation. If an outpatient evaluation recommends further evaluation on an inpatient basis, or if the defendant’s mental condition is so severe that emergency treatment is required, the evaluation will be conducted on an inpatient basis. The individual may only be held in the hospital for up to 30 days for this evaluation. The Sixth Amendment to the Constitution of the United States guarantees that individuals charged with a crime shall have "due process" of law, meaning that they have an opportunity to consult with an attorney, to confront their accusers, and to present evidence, none of which they can do if they are suffering from a mental illness which renders them incompetent to stand trial.
19.2-169.2:Restoration to Competency to Stand Trial
This section is for individuals who have been found to be incompetent to stand trial and are in need of restoration to competency. Restoration may be attempted on an outpatient basis. Treatment is available in most jails and if the defendant is released on bond they may seek treatment at their local Community Service Board. More often, individuals are sent to the hospital for restoration to competency. An individual may only be held in the hospital under this section for up to six months before the court which issued the restoration order must review the defendant’s competency. However, the hospital notifies the court immediately when it is believed that a defendant has been restored to competency. The majority of individuals require far less than six months of treatment. Note: on any given day, there are more patients in the Forensic Unit under this legal section than any other.
19.2-169.3: Disposition of Incompetent Defendants
This section describes what can happen to those individuals who have been found incompetent and have become the subject of an order for restoration to competency. At the end of six months after the court has issued an order for restoration to competency, a hearing must be held to determine if the defendant is still incompetent. If so, and it is believed that further treatment might eventually restore the defendant to competency, then the court may issue another order for restoration to competency. This may continue for up to five years from the date of arrest, or for the length of time of the maximum sentence the defendant would have received if he had been tried and found guilty, whichever is sooner. Then the charges must be dismissed, unless the defendant has been charged with a capital crime, in which case there is no time limit.
If the doctors at the hospital determine that the defendant cannot be restored to competency in the "foreseeable future," the court is immediately notified with a report that recommends whether the patient should be a) released, b) kept in the hospital for further treatment as a "civil" (non-forensic) patient pursuant to section 37.2-814 et seq., c) committed as a sexually violent predator pursuant to section 37.2-905, or d) certified as mentally retarded to a training center pursuant to section 37.2-806. A hearing is held at which it is decided first whether the defendant is still incompetent, and, if so, whether the defendant is unrestorably incompetent, and, if so, what the disposition will be. Very few incompetent defendants are found unrestorably incompetent.
19.2-169.5: Mental Status at the Time of the Offense
This section is an order for an evaluation of the mental status of the defendant at the time of the offense. It is requested by the defense attorney when that attorney thinks that his client might have committed the alleged offense but was so mentally ill at the time that he could not understand the nature, consequences or wrongfulness of the act, or if he did understand those things, that he could not resist the impulse to commit the act. This evaluation is frequently ordered at the same time as the Competency to Stand Trial evaluation (19.2-169.1) and may also be done on an outpatient basis like the Competency evaluation. If conducted on an inpatient basis, the defendant may only be held in the hospital for up to 30 days.
19.2-169.6: Emergency Treatment Prior to Trial
This section allows for any criminal defendant being held in a jail to be transferred to a hospital for treatment if the defendant is found to be mentally ill and imminently dangerous to himself or others. A defendant may be held for up to 30 days from the initial commitment and, if further treatment is required, he may be recommitted for up to 60 days. Each subsequent re-commitment requires the same finding of mental illness and imminent dangerousness and is for up to 60 days. Very often, a defendant committed to the Forensic Unit under this section will then also be the subject of orders for evaluation of Competency to Stand Trial and Mental Status at the Time of the Offense.
19.2-168.1: Mental Status at the Time of the Offense requested by the Commonwealth’s Attorney
If the defense attorney decides to pursue the insanity defense in hopes that the defendant will be found not guilty by reason of insanity, the Commonwealth’s Attorney (the prosecutor) can ask for a second opinion evaluation. Just like the first Mental Status at the Time of the Offense evaluation, this one may be conducted on an outpatient or an inpatient basis.
19.2-176: Emergency Treatment or Evaluation after Conviction but before Sentencing
If someone is convicted or pleads guilty to a crime and is being held in jail to await sentencing, they may be sent to the hospital for treatment or evaluation under this section. Most often, the inmate simply needs treatment because their condition has gotten worse after the trial while they wait in jail for their sentence, but sometimes the court requests a report that might be used in formulating the inmate’s sentence. Like the pre-trial emergency treatment order (19.2-169.6), the initial commitment is good for up to 30 days and any subsequent re-commitments can last up to 60 days each.
19.2-177.1: Emergency Treatment after Sentencing
This section allows an inmate who has been sentenced and is in a local or regional jail and has been found to be mentally ill and imminently dangerous to themselves or others to be sent to the Forensic Unit for treatment. The inmate may be held in the hospital under the initial commitment for up to 30 days, and for up to 60 days each on subsequent commitment. Note: individuals who are serving a sentence in the Department of Corrections and who are committed for inpatient psychiatric treatment are placed either in the Marion Correctional Treatment Center for men or the Fluvanna Correctional Center for Women instead of coming to the CSH Forensic Unit.
19.2-182.2: Temporary Custody and Evaluation of NGRI
Individuals who are found Not Guilty by Reason of Insanity (NGRI) are admitted under this section for evaluation as to whether they should be kept in the hospital for further treatment, placed on conditional release in the community, or released to the community without conditions. Two independent evaluations are completed by evaluators who do not work in the CSH Forensic Unit and are submitted to the court within 45 days of the patient’s admission. If one or both evaluators recommend release, then the temporary custody period is extended at least another 45 days (depending in the court’s schedule) to allow for the preparation of a conditional release plan (for conditional release) or a discharge plan (for unconditional release). Most commonly, the patient (now called an "acquittee") is committed to the hospital. Less frequently, the acquittee is placed on conditional release from temporary custody, which takes a minimum of three months and usually more. Unconditional release is extremely rare and usually involves an individual from another state who is being released to return to their home state.
19.2-182.3: Hearing on Temporary Custody Evaluations
This section describes the hearing held on the temporary custody evaluations and any release plans submitted to the court. The decision of the court on whether to commit the acquittee for further inpatient treatment is based on a) to what extent the acquittee is mentally ill or mentally retarded, b) the likelihood that the acquittee will engage in conduct which poses a substantial risk of bodily harm to himself or others, c) the likelihood that the acquittee can be controlled with outpatient supervision and treatment, and d) such other factors as the court deems relevant.
19.2-182.5: Continuation of Confinement Reports and Hearings
This section describes how those patients who were found NGRI on at least one felony charge and were committed to the hospital for further treatment automatically get a hearing once a year for the first five years and every other year after that to review whether they still require inpatient treatment. They can also request a second opinion evaluation be conducted if their hospital is still recommending that they are not ready to be released. Although it is not described in the law, insanity acquittees who are committed to the hospital participate in a graduated release program in which they are granted increasing privileges, beginning with transfer from the Forensic Unit to the "civil" hospital in their home region, as their condition improves. This section of the law specifies that those individuals found NGRI on misdemeanor charges only cannot be held in the hospital as insanity acquittees for longer than one year after they were found NGRI, regardless of whether they have earned any privileges or not.
19.2-182.6: Petition for Conditional Release
Once the Forensic Review Panel, on behalf of the Commissioner of the Department (see 19.2-182.13, below), agrees that an acquittee should be released, the court is notified and two independent evaluators are appointed to submit reports to the court about whether they agree that the acquittee should be released (Note: in some instances when the Commonwealth’s Attorney does not oppose the release, the evaluations are waived and the court proceeds to order release based on the Panel’s recommendation). Notice is given to any victims of the NGRI offense, or next of kin to the victims, who have requested to be notified in the case of a release hearing.
19.2-182.7: Conditional Release
The criteria for conditional release are 1) that the acquittee does not need inpatient hospitalization but needs outpatient treatment and monitoring to prevent his condition from deteriorating to a degree that he would need inpatient hospitalization, 2) appropriate outpatient supervision and treatment are reasonably available, 3) there is significant reason to believe that the acquittee, if conditionally released, would comply with the conditions specified and 4) conditional release will not present and undue risk to public safety. The Community Service Board provides reports to the court every six months after release describing the acquittee’s compliance with the conditions of release. This section also points out that an acquittee who has violated the conditions of release but does not need inpatient hospitalization may be held in contempt by the court, and subject to a fine, up to ten days in jail, or both. There is no limit to how long a court may retain jurisdiction over the conditional release of an NGRI acquittee.
19.2-182.8: Revocation of Conditional Release
The court in which the acquittee was found NGRI maintains jurisdiction while he is on conditional release, and may order that the release be revoked and the acquittee be returned to the hospital if the acquittee has violated the conditions of his release or is no longer a proper subject for conditional release and is mentally retarded or mentally ill and requires inpatient hospitalization.
19.2-182.9: Emergency Revocation of Conditional Release
Acquittees on conditional release are subject to the same laws governing emergency psychiatric treatment as any other individual in the community. Any judge or magistrate may issue an emergency custody order allowing an acquittee to be held and transported for an evaluation for commitment to a psychiatric hospital pursuant to a temporary detention order ("TDO" :section 37.2-809 through 813, below). If a TDO is issued and the acquittee is hospitalized on an emergency basis, a hearing must be held within 48 hours at which any judge or magistrate may find that the acquittee has violated the conditions of release or is no longer a proper subject for conditional release and is mentally ill or mentally retarded and requires inpatient hospitalization. (Note: If the acquittee is committed, an internal review by the Forensic Review Panel will determine what if any privileges the acquittee should have to begin working toward returning to conditional release.)
19.2-182.10: Return of Revoked Acquittee to Conditional Release
Some acquittees who have their conditional release revoked do not need an extended hospitalization, and may in fact be able to return to the community after a very brief admission. This section says that an acquittee may be returned to conditional release with approval of the court within 30 days. (Note: Practically speaking, since a hearing before the NGRI court is required, the actual release is rarely accomplished in the 30 days. It is up to the court when to set the hearing.)
19.2-182.11: Modification and Removal of Conditions
This section describes how the conditions of the release plan may be modified or removed by the NGRI court. This includes increasing or decreasing the level of supervision. The acquittee may petition for conditions to be modified or removed once a year.
19.2-182.13: Forensic Review Panel
This section allows the Commissioner of the Department to delegate any authority granted to him in these statutes to the Forensic Review Panel. The means the Panel has the authority to review requests for conditional release and communicate their recommendations on behalf of the Commissioner to the court.
37.2-809 through 813: Emergency Custody and Temporary Detention Orders
This section applies to individuals who are not under arrest or detained in jail for criminal matters. It describes how an individual may be held or transported under an Emergency Custody Order to a place where a mental health professional from the community service board can conduct what is called a "pre-screening," or brief evaluation of the need for inpatient psychiatric treatment. If the mental health professional finds the individual to be mentally ill and in need of inpatient hospitalization and either dangerous to themselves or others or substantially unable to care for themselves in the community, a temporary detention order (TDO) is issued and the individual is transported to and held in a mental health facility for up to 48 hours (not including weekends and holidays). Similar procedures are required for the emergency treatment orders for jail inmates (sections 19.2-169.6, -176, & -177.1, above). Individuals who are already committed to the Forensic Unit under some other section relevant to criminal court, but then for whatever reason have their charges dismissed, may become subject to a "civil" (non-forensic) TDO if they still need inpatient hospitalization.
37.2-814 through 819: Voluntary or Involuntary Commitment
This section applies primarily to individuals who are not being held on a criminal matter. Most commonly, it applies to those who have been admitted to a hospital for 48 hours on a TDO (see above). Before the 48 hours expires, a hearing is held before a judge or magistrate. If the individual is capable and willing, they may sign into the hospital voluntarily (but may not leave voluntarily for 72 hours and then must give the hospital 48 hours notice). Otherwise, a hearing is held (usually at the hospital) and if the individual is found to be unable to care for themselves due to mental illness or to pose an imminent danger to themselves or others due to mental illness and to be in need of inpatient hospitalization, they may be committed to the hospital for up to 180 days (about six months). The hospital is free to discharge the patient sooner without court approval.
Incompetent defendants who have been committed to the hospital for restoration to competency pursuant to section 19.2-169.2 (see above) and are then found to be unrestorably incompetent pursuant to section 19.2-169.3 (also, see above) may be committed to the hospital pursuant to this "civil" section of 37.2-814 through 819 whether or not their criminal charges are dismissed. Some courts will require notification before the hospital can discharge the patient to the community, but otherwise these patients are treated in a similar fashion to those patients admitted strictly as "civil" patients.