Friday, July 13, 2007
Reflections on Civil Commitment Law in Virginia
BY DANIEL MOSELEY

The recent events at Virginia Tech have increased public awareness and demand for reforming the state’s mental health system. Even before the tragedy at Virginia Tech, efforts were under way to overhaul the state’s mental health system.

The Commission on Mental Health Law Reform, led by Richard Bonnie and launched by Sr. Chief Justice Hassell of the Supreme Court of Virginia, is examining Virginia’s mental health laws, on the books and in practice, in order to construct better legal policies concerning persons with mental illness.¹ The commission aims to formulate and defend policies that (1) will serve the needs and protect the interests of persons with mental illness and (2) will respect the interests and needs of their families and communities. Their research will culminate in a mental health law reform package that will be presented to the 2008 General Assembly.

The commission was formed in response to disapproval from almost every stakeholder concerning almost every aspect of the state’s civil commitment process: mental health practitioners, law enforcement personnel, judges, persons with mental illness and their families uniformly expressed exasperation with the current civil commitment process in the state. One dimension of the commission’s project involves reviewing the criteria for civil commitment.

Under current Virginia law, if a magistrate issues an emergency custody order or a temporary detention order, or if a judge (or special justice) issues an order for involuntary admission to a mental health facility, the person in question must “present an imminent danger to himself or others as a result of mental illness or is so seriously mentally ill as to be substantially unable to care for himself.” The imminence requirement is a very restrictive criterion for civil commitment, and Virginia is one of few states in the nation to institute it.

I have witnessed the process of civil commitment on numerous occasions over the past decade in my attempts to mandate treatment for a close family member who struggles with schizophrenia. During my first attempt to have her examined by a mental health professional, the magistrate refused to issue an order, on the grounds that she was not an imminent threat to herself or others and she was able to care for herself.

The discussion was breathtakingly perfunctory. The magistrate asked what symptoms she was displaying. I replied, “She is having conversations with people that are not present. She has not gone to work in a week. She will not leave one room in her apartment and she is frightened because she thinks that someone wants to assassinate her.”

He responded, “Does she have food and water in the house.”

“Yes.”

“Has she threatened to kill herself?”

“No.”

“Has she threatened to kill you or anyone else?”

“No, but she does think that other people want to kill her.” Not enough. My request to have her examined was denied. My family and I watched her condition deteriorate for months until she lost her job and the electricity and water to her apartment were disconnected. We were unable to discover whether she had food and water in the house. When the order was finally granted the police placed her in handcuffs, as they are required to do, to take her away for her first screening.

She was involuntarily hospitalized for almost a year. Since then, she has been living on her own but about once a year she needs to be involuntarily hospitalized because she stops taking her medication or the medication ceases to work. Unfortunately, she normally needs to have mandated treatment and this requires that my family and her case manager have to watch her condition decline to the point of another crisis. It is a torturous process. And every time she is taken to the hospital, she is handcuffed like a criminal. Over the years, her baseline has become increasingly less lucid: waiting for her condition to reach a crisis every time before every round of treatment cannot be helping.

The law should be reformed in two ways. The easiest reform is that the commitment process should be decriminalized: those who are detained solely on the grounds of being unable to care for themselves should not be handcuffed. The other, more complicated reform is that the imminence requirement should be dropped. I recommend that the word “imminent” simply be eliminated from the current law. The dangerousness of a person’s mental illness should be a prominent factor in the criteria for civil commitment, but requiring the danger to become a crisis is negligent and unjust to the mentally ill persons themselves and to their communities. Moreover, the imminence requirement has made it difficult for friends and family to have any input in the commitment process (other than to report whether there is an imminent danger). It is negligent to fail to treat mentally ill persons who are desperately in need of help, do not have the cognitive or emotional faculties to help themselves, and either have no friends and family members who care for them, or have friends and families who care but whose concerns are ignored.

One cannot ignore the serious risks associated with lowering the threshold for mandated treatment for mental illness. The power of civil commitment is subject to abuse, as the history of mental health law in the United States attests. However, since the de-institutionalization movement of the 1970s, worries about “meddling families” have been overly emphasized and have, in part, fueled neglectful policies.

I do not want to advocate an overly paternalistic approach to civil commitment law. Virginia is one of few states that have an imminence requirement for civil commitment. No evidence (of which I am aware) suggests that other states are experiencing widespread abuse of the powers of civil commitment. Virginia should follow their example and drop the imminence requirement.

Daniel Moseley is a doctoral student in philosophy at the University of Virginia.

1 See Leroy Hassell’s “Reforming Civil Commitment in Virginia,” Richard Bonnie’s “Reforming Commitment: Serving Consumers’ Needs While Protecting Their Rights,” and Paul Appplebaum’s “History of Civil Commitment and Related Reforms: Lessons for Today,” in Developments in Mental Health, Volume 25, Number 1, January 2006.

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