Virginia Lawyers Weekly

WILLIAMSBURG—The Commission on Mental Health Law Reform thinks a person with mental health issues should have more say over how he is treated if and when he becomes incapable of directing his own mental health treatment.

The commission is backing a proposal to revise Virginia’s advance directive law, the Health Care Decisions Act, to cover those who anticipate incapacity from dementia and persons whose mental illness periodically prevents them from making an informed decision about their care. The law now authorizes directives for end-of-life care but does not address the possibility of directives for other circumstances when a person might be incapacitated.

The commission approved the concept and draft legislation to implement it on Oct. 30 at the Williamsburg Hospitality House during its final meeting before the 2009 session of the General Assembly.

Virginia Chief Justice Leroy Rountree Hassell Sr. appointed the commission in the fall of 2006, and its work took on added significance after April 2007, when a Virginia Tech student killed himself and 32 others at the school.

Recommendations from the commission led to significant changes in the state’s mental health system and increased funding for it during the 2008 legislative session. The changes included a revision of the basis for the involuntary commitment of the mentally ill.

Richard J. Bonnie, the University of Virginia law professor who chairs the commission, told its members in Williamsburg that those legislative efforts were “a gigantic first step, but it was a first step” toward the goal of comprehensive mental health reform.

Bonnie said the system falls far short of one that would “draw people into services because they’re available and prevent deterioration that turns into incapacity and commitment” and that would “use coercion only when necessary but make it effective when it is.”

The advance directive legislation would allow a person with a history of mental illness to designate while he is competent someone to make decisions on his behalf when he lacks the capacity to do so himself. A key provision would be the procedure required when a person who has authorized treatment when he is capable of making such decisions objects to that treatment when he is incapable of making an informed decision.

Transportation issue

Another proposal would allow a magistrate to permit someone other than a law enforcement officer to provide transportation for a person for whom an emergency custody or temporary detention order has been entered.

Sheriffs long have chafed at the requirement that their deputies provide the transportation, and the condition of the person may be such that it would be much less traumatic for him to be transported by a family member, a community services board representative or someone from the facility where the person is being evaluated or detained, said Senior Assistant Attorney General Jane Hickey.

Most sheriff’s departments have a policy of requiring the person to be handcuffed while in their custody, and the restraint frequently adds to the trauma, Hickey said.

The proposed legislation would allow three tiers of transportation for those under ECOs or TDOs: family and friends, community service board employees, taxis or Medicaid vendors; ambulance service; and law enforcement. A report by a commission work group noted a pilot project in Northern Virginia that has drafted proposed guidelines for determining the safest and most cost-effective means of transmitting an individual patient.

One possibility would be a vehicle that would be less secure than transportation by law enforcement and less expensive than ambulances or other emergency services vehicles.

The commission also adopted recommendations for changes to 2008 legislation that are not clear or that have proved impractical. One would clarify that the requirement of the presence of a community services board staff member at commitment hearings does not mean that the representative must be the person who prepared the pre-admission screening report.

That report also would be admitted into evidence and become part of the record during the proceeding. Some magistrates had been requiring the preparer of the report to be present at the hearing and had refused to consider the report when that person was not there.

The commission recommended that general district clerks be allowed to submit records of involuntary commitment to state police the day after they receive them rather than the same day they get them. Transmission of the reports, which must be done by fax machine, had proved to be burdensome at the end of the day.

The meeting included substantial discussion of mandatory outpatient treatment, but the commission decided to make no further recommendations on that topic because the system lacked the money and manpower to provide and monitor such treatment, even before the state budget shortfall required a 5 percent cut in the budgets of community service boards and an even steeper cut for the central office of the Department of Mental Health, Mental Retardation and Substance Abuse Services.

Dr. James S. Reinhard, the head of the department, told the group that the cuts will limit the effectiveness of measures approved earlier this year that included more staff to monitor and provide therapy after a person who has been committed for mental health treatment.

He noted that 39 of the 280 positions in the central office commission will be eliminated because of the shortfall. Leaving vacancies open and retirements will reduce the number of layoffs to four, he said.

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