CODE OF VIRGINIA

INVOLUNTARY TEMPORARY DETENTION; ISSUANCE AND EXECUTION OF ORDER (§ 16.1-340.1)

A. A magistrate shall issue, upon the sworn petition of a minor’s treating
physician or parent or, if the parent is not available or is unable or unwilling
to file a petition, by any responsible adult, including the person having
custody over a minor in detention or shelter care pursuant to an order of a
juvenile and domestic relations district court, or upon his own motion and only
after an evaluation conducted in-person or by means of a two-way electronic
video and audio communication system as authorized in § 16.1-345.1 by an
employee or designee of the local community services board to determine whether
the minor meets the criteria for temporary detention, a temporary detention
order if it appears from all evidence readily available, including any
recommendation from a physician or clinical psychologist treating the person,
that (i) because of mental illness, the minor (a) presents a serious danger to
himself or others to the extent that severe or irremediable injury is likely to
result, as evidenced by recent acts or threats, or (b) is experiencing a serious
deterioration of his ability to care for himself in a developmentally
age-appropriate manner, as evidenced by delusionary thinking or by a significant
impairment of functioning in hydration, nutrition, self-protection, or
self-control; and (ii) the minor is in need of compulsory treatment for a mental
illness and is reasonably likely to benefit from the proposed treatment. The
magistrate shall also consider the recommendations of the minor’s parents
and of any treating or examining physician licensed in Virginia if available
either verbally or in writing prior to rendering a decision. To the extent
possible, the petition shall contain the information required by § 16.1-339.1.
Any temporary detention order entered pursuant to this section shall be
effective until such time as the juvenile and domestic relations district court
serving the jurisdiction in which the minor is located conducts a hearing
pursuant to subsection B of § 16.1-341. Any temporary detention order entered
pursuant to this section shall provide for the disclosure of medical records
pursuant to subsection B of § 16.1-337. This subsection shall not preclude any
other disclosures as required or permitted by law.

B. When considering whether there is probable cause to issue a temporary
detention order, the magistrate may, in addition to the petition, consider (i)
the recommendations of any treating or examining physician or psychologist
licensed in Virginia, if available, (ii) any past actions of the minor, (iii)
any past mental health treatment of the minor, (iv) any relevant hearsay
evidence, (v) any medical records available, (vi) any affidavits submitted, if
the witness is unavailable and it so states in the affidavit, and (vii) any
other information available that the magistrate considers relevant to the
determination of whether probable cause exists to issue a temporary detention
order.

C. A magistrate may issue a temporary detention order without an emergency
custody order proceeding. A magistrate may issue a temporary detention order
without a prior evaluation pursuant to subsection A if (i) the minor has been
personally examined within the previous 72 hours by an employee or designee of
the local community services board or (ii) there is a significant physical,
psychological, or medical risk to the minor or to others associated with
conducting such evaluation.

D. An employee or designee of the community services board shall determine the
facility of temporary detention in accordance with the provisions of §
16.1-340.1:1 for all minors detained pursuant to this section. The facility
shall be identified on the preadmission screening report and indicated on the
temporary detention order. Subject to the provisions of § 16.1-340.1:1, if a
facility of temporary detention cannot be identified by the time of the
expiration of the period of emergency custody pursuant to § 16.1-340, the minor
shall be detained in a state facility for the treatment of minors with mental
illness and such facility shall be indicated on the temporary detention order.
Except for minors who are detained for a criminal offense by a juvenile and
domestic relations district court and who require hospitalization in accordance
with this article, the minor shall not be detained in a jail or other place of
confinement for persons charged with criminal offenses and shall remain in the
custody of law enforcement until the minor is either detained within a secure
facility or custody has been accepted by the appropriate personnel designated by
the facility identified in the temporary detention order.

E. Any facility caring for a minor placed with it pursuant to a temporary
detention order is authorized to provide emergency medical and psychiatric
services within its capabilities when the facility determines that the services
are in the best interests of the minor within its care. The costs incurred as a
result of the hearings and by the facility in providing services during the
period of temporary detention shall be paid and recovered pursuant to §
37.2-804. The maximum costs reimbursable by the Commonwealth pursuant to this
section shall be established by the State Board of Medical Assistance Services
based on reasonable criteria. The State Board of Medical Assistance Services
shall, by regulation, establish a reasonable rate per day of inpatient care for
temporary detention.

F. The employee or designee of the local community services board who is
conducting the evaluation pursuant to this section shall determine, prior to the
issuance of the temporary detention order, the insurance status of the minor.
Where coverage by a third party payor exists, the facility seeking reimbursement
under this section shall first seek reimbursement from the third party payor.
The Commonwealth shall reimburse the facility only for the balance of costs
remaining after the allowances covered by the third party payor have been
received.

G. The duration of temporary detention shall be sufficient to allow for
completion of the examination required by § 16.1-342, preparation of the
preadmission screening report required by § 16.1-340.4, and initiation of
mental health treatment to stabilize the minor’s psychiatric condition to
avoid involuntary commitment where possible, but shall not exceed 96 hours prior
to a hearing. If the 96-hour period herein specified terminates on a Saturday,
Sunday, or legal holiday, the minor may be detained, as herein provided, until
the close of business on the next day that is not a Saturday, Sunday, or legal
holiday. The minor may be released, pursuant to § 16.1-340.3, before the
96-hour period herein specified has run.

H. If a temporary detention order is not executed within 24 hours of its
issuance, or within a shorter period as is specified in the order, the order
shall be void and shall be returned unexecuted to the office of the clerk of the
issuing court or, if the office is not open, to any magistrate serving the
jurisdiction of the issuing court. Subsequent orders may be issued upon the
original petition within 96 hours after the petition is filed. However, a
magistrate must again obtain the advice of an employee or designee of the local
community services board prior to issuing a subsequent order upon the original
petition. Any petition for which no temporary detention order or other process
in connection therewith is served on the subject of the petition within 96 hours
after the petition is filed shall be void and shall be returned to the office of
the clerk of the issuing court.

I. For purposes of this section a healthcare provider or an employee or designee
of the local community services board shall not be required to encrypt any email
containing information or medical records provided to a magistrate unless there
is reason to believe that a third party will attempt to intercept the email.

J. The employee or designee of the local community services board who is
conducting the evaluation pursuant to this section shall, if he recommends that
the minor should not be subject to a temporary detention order, inform the
petitioner and an on-site treating physician of his recommendation.

K. Each community services board shall provide to each juvenile and domestic
relations district court and magistrate’s office within its service area a
list of employees and designees who are available to perform the evaluations
required herein.

HISTORY: 2010, cc. 778, 825; 2014, cc. 691, 773.