The psychiatric hospitalization of a person against his or her will is a treatment option that is pursued only when all less restrictive treatment options have been exhausted or deemed unsuitable.

Taking away an individual’s personal freedom, even with the good intention of providing mental health treatment, is such a serious step that the Virginia legislature has established strict requirements that must be met before a person can be involuntarily hospitalized.

Involuntary hospitalization occurs only when a person’s psychiatric condition causes a situation where there is a substantial likelihood that the person, in the near future, will “cause serious physical harm” to self or others, or will “suffer serious harm” due to lack of capacity to protect self or to provide for their basic human needs.

The process starts with the issuance of a Temporary Detention Order (TDO) and the scheduling of a Commitment Hearing. The involuntary hospitalization of adults is done in accordance with the Code of Virginia, sections 37.2-800 through 37.2-847, as amended.

A Temporary Detention Order (TDO) is a court order issued by a Magistrate* that requires an individual to be held in a psychiatric facility for a period, with some exceptions, of up to 72 hours until a commitment hearing is held. How long the person is hospitalized before the hearing occurs depends upon when the TDO is issued and executed and whether there is an intervening weekend or legal holiday. Magistrates are available every day of the year, 24 hours a day.

* Often a resident's first contact with Virginia’s Judicial System is through the Office of the Magistrate. The magistrate provides an independent, unbiased review of complaints of criminal conduct brought to the office by law enforcement or the public. Among a magistrate’s many duties are processes such as issuing arrest warrants, search warrants, subpoenas, and temporary detention orders. Magistrates can conduct hearings in person or by videoconference, and are available around the clock at two locations in Fairfax County:
Fairfax Adult Detention Center, 10520 Judicial Drive, Fairfax, VA 22030
Mount Vernon Governmental Center, 2511 Parkers Lane, Alexandria, VA 22306

A TDO is issued in response to a request by a “Petitioner” and, except in rare circumstances, only after completion of an in-person assessment within the preceding 72 hours by a “Certified Prescreener.” The Petitioner, defined by the Code of Virginia as “any responsible person,” is the person who is requesting involuntary hospitalization of the individual. The Certified Prescreener must be a mental health clinician who is employed by the Community Services Board (CSB) and certified to conduct TDO evaluations.

The purpose of the Certified Prescreener’s assessment is to determine whether the individual meets the TDO criteria specified in the statute. Based on the results, the Certified Prescreener will then recommend or not recommend that the individual be involuntarily hospitalized under a TDO.

If a TDO is issued, the results of the assessment are documented in a Preadmission Screening report (“prescreening”) that is sent to the hospital and admitted into evidence at the commitment hearing. Prior to issuance of the TDO, the Certified Prescreener is required to ascertain the insurance status of the individual and determine the facility where they will be hospitalized. The Certified Prescreener is also required to inform the petitioner and the “on-site treating physician” if hospitalization under a TDO is not being recommended.

To issue the TDO, the Magistrate, based on all the evidence readily available, must decide that the individual:

1. Has a mental illness and that there exists a substantial likelihood that, as a result of that mental illness, the person will, in the near future:
   1. cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information, if any, or
   2. suffer serious harm due to their lack of capacity to protect themselves from harm or to provide for their basic human needs,

and

2. Is in need of hospitalization or treatment, and
3. Is unwilling to volunteer or incapable of volunteering for hospitalization or treatment.

Defining “serious physical harm,” “serious harm” and “basic human needs” is a matter for each Magistrate and Certified Prescreener. Typically, they look for evidence that the individual is engaging in behavior that could result in physical injury, disability or death, or could result in physical or legal harm because they are not caring for themselves or providing for their food, clothing or shelter.

Once the TDO is issued, a police officer will serve the TDO, take the individual into custody, and transport them to the hospital. During transportation to the hospital, police officers usually place the person in handcuffs.

An attempt will be made to have the individual admitted to one of the psychiatric hospitals located in Fairfax County. The Petitioner will be notified of individual’s psychiatric bed placement once obtained.

Generally, the TDO Hearing is held within 2-3 days of the TDO. If the Individual is admitted to one of the four hospitals in Fairfax County, the commitment hearing is held at the hospital where they were admitted. The Fairfax County Assistant County Attorney or the Independent Evaluator will contact the identified petitioner the day before and let them know the hearing day and approximate time. If the person is placed outside of Fairfax County, the information can be obtained by contacting the hospital where the individual has been admitted or by contacting the Emergency Service at the Sharon Bulova Center for Community Health (703-573-5679; TTY 711).

Fairfax TDO Hearings are currently being held via Zoom video-conferencing, the instructions for connection follow:

A Zoom link will be sent by email to the identified petitioner by either the County Attorney, an Independent Evaluator or a CSB Hearing Representative on the day of the TDO hearing.

It is necessary to have a smart phone (a phone with a camera) or computer with video connection capability to participate in the TDO/civil commitment hearing.

Before logging into the Zoom link via a smart phone or computer, it is helpful to download the Zoom application beforehand through the device’s “app store.”

To log on via smart phone:

If the Zoom app is NOT downloaded before logging on, please follow these steps:

After clicking on the Zoom link (will likely be highlighted in blue in the body of an email), you will see a page that says, “Ready to get started?” Click on the blue button that states, “Download from App Store.” Download the app onto your phone and wait for it to load.

Once the Zoom app is downloaded, click “Open” and you will be taken to a page within the Zoom app that states, “Start or join a meeting.”

Return to the original email and click on the Zoom link again.

You can indicate your identification where it says “Name” and then MANUALLY enter the meeting passcode in the line labeled as “Meeting Passcode.” The meeting passcode is: ABCDE1234! (case sensitive)

It is imperative that you type in the passcode and do NOT copy and paste the passcode from the body of the email.

Once you enter the passcode, click “Continue” and then indicate “OK” or “Allow” to permit Zoom access to your camera.

Click the blue button at the bottom of your screen where it states, “Join With Video.”

Another screen will open stating “Zoom would like to access the microphone” – click “Ok” to permit Zoom access to your microphone.

You will then see a screen that states, “The host will let you in soon.” Please wait on this screen until the host of the Zoom meeting allows you into the court hearing.

If the Zoom app is already downloaded, please follow these steps:

Click on the Zoom link (will likely be highlighted in blue in the body of an email) that is sent to you.

MANUALLY enter the meeting passcode in the box labeled as “Meeting Passcode.” The meeting passcode is: ABCDE1234! (case sensitive)

It is imperative that you type in the passcode and do NOT copy and paste the passcode from the body of the email.

Once you enter the passcode, click “Continue” and then indicate “OK” or “Allow” to Zoom access to your camera.

You will then see a screen that states, “The host will let you in soon.” Please wait on this screen until the host of the Zoom meeting allows you into the court hearing.

If a petitioner has difficulty or does not have access to a Smart Phone or Video enabled computer…

Petitioners may present to the Sharon Bulova Center for Community Health Emergency Services and receive assistance logging on to the TDO hearing utilizing the CSB’s available tele-video equipment.

Please present to the CSB well in advance of your scheduled TDO court appearance to allow sufficient time to set up the tele-video equipment and log on to the TDO hearing.

It is essential that the Petitioner and any witnesses be present when the case is called. If the Petitioner and/or witnesses are not present, the TDO will be dismissed, and the person will be released from the hospital.

Those attending the commitment hearing include: the individual, their court-appointed Attorney, a Special Justice, an Independent Evaluator, a CSB representative, the Petitioner and any witnesses who are attending the hearing to testify.

The Special Justice conducts the hearing and determines the final outcome of the hearing.

The court-appointed attorney, at State expense, represents the individual at the hearing. The attorney is required to “represent the wishes of his client.” This means that if the individual wants to be discharged from the hospital, the attorney will challenge the opinion and testimony of those who think they should remain in the hospital. Before the hearing, the attorney may obtain information by interviewing the individual, the Petitioner, the Certified Prescreener, the Independent Evaluator and any witnesses, and by reviewing relevant treatment records and reports.

In Fairfax County, the Independent Evaluator is usually a Clinical Psychologist, licensed in Virginia, who is skilled in the diagnosis and treatment of mental illness. Before the hearing, the Independent Evaluator conducts an evaluation of the individual in order to provide an “expert clinical opinion” about whether the individual has a mental illness and whether there is a substantial likelihood that, as a result of the mental illness, the individual will, in the near future, (1) cause serious physical harm to self or others, or (2) suffer serious harm due to their lack of capacity to protect themselves from harm or to provide for their basic human needs. The Independent Evaluator will also provide clinical opinions about what type of treatment the person needs and whether or not that treatment should be ordered by the court.

The Petitioner is the person who has witnessed the behavior that warranted and who requested that the individual be involuntarily hospitalized; they are an essential part of the TDO process. Petitioners are often family members or friends but can be other mental health professionals or concerned individuals.

According to the Virginia Code, the Petitioner is “entitled” to attend the hearing and to “testify and present evidence.” It also indicates that the Petitioner is “encouraged” but “not required” to testify at the hearing and that the “person whose involuntary admission is sought should not be released solely because the Petitioner fails to attend or testify at the hearing.” But the presence and testimony of the Petitioner at the hearing is a practical necessity. If the Petitioner and/or witness are not present to provide firsthand evidence about the individual’s behavior – especially those behaviors and verbal threats that have resulted in, or could result in, physical harm – there is the strong possibility that the TDO will be dismissed at the hearing due to insufficient evidence. When that happens, the individual will be free to leave the hospital.

As the petitioner, you will be asked to complete and sign a “Petition for Involuntary Admission for Treatment” court form. On this form you will be required to provide specific information about why you are asking to have a TDO issued. The form will need to be notarized. This can be completed by a CSB Emergency Services staff and the form will be sent to the Court.

Petitioners are permitted to hire an attorney, at their own expense, to represent them at the hearing. While not required, this is very useful as the attorney is able to elicit testimony which is admissible at the hearing, provide legal advice and suggestions, and respond to legal issues that may be raised at the hearing.

As the Petitioner, you are strongly encouraged to bring other witnesses to the hearing so they can provide supporting testimony. You and your witnesses should be available to the Independent Evaluator prior to the hearing to provide information about why you sought the TDO. You are also encouraged to bring to the hearing any relevant physical evidence (for example, weapons, photographs, audio recordings, letters, documents, etc.) that supports your testimony.

Do not hesitate to ask questions of the Special Justice, the Independent Evaluator and the Attorney if you do not understand something that is occurring at the hearing.

The Petitioner should provide first-hand testimony that includes information about what the individual has done or said that puts them at risk for causing serious physical harm to self or others or at risk for suffering serious harm because they are not protecting themselves from harm or providing for their basic human needs. When you testify, it is important to focus on the individual’s recent behavior that you have personally witnessed and on recent statements or verbal threats made by the individual that you have personally heard. What is considered “recent” varies among the Special Justices, but may encompass anything from the past few days to the past few weeks.

When testifying, try to be as direct and precise as possible and provide as may details as you can. You will probably not be able to simply express your opinion or concern that the individual will suffer or cause physical harm. The individual’s attorney will probably object to such testimony since only an “expert witness” may offer an opinion. Rather, testimony should focus on facts and specific examples of the individual’s recent behavior and verbal threats about which you have personal and direct knowledge. This includes recent statements made by the individual directly to you or that you have personally heard the individual make to others and any documents recently written by the individual that you have obtained. Remember to include evidence related to the individual’s refusal to seek or cooperate with voluntary psychiatric treatment.

If you are the Petitioner and do not have first-hand evidence, then it is absolutely essential that you bring witnesses who do have such information. While there are exceptions, Virginia law essentially does not allow the Petitioner or witnesses to testify about what someone else told them or about behavior they have not personally seen or heard. Such evidence is rarely admissible because it is considered “hearsay” under the laws of evidence.

According to the Virginia Code, the Special Justice, in addition to his “observations” of the individual, should consider the following evidence when making his decision about the outcome of the hearing:

• the recommendations of any treating or examining physician or psychologist licensed in Virginia, if available,
• any past actions of the person,
• any past mental health treatment of the person,
• any examiner’s certification,
• any health records available,
• the preadmission screening report, and
• any other relevant evidence that may have been admitted.

At the start of the hearing, the participants will be asked to identify themselves and be sworn in if they are going to provide testimony. The Special Justice will then advise the individual of their legal rights and inform the individual of their right to apply for voluntary admission to inpatient treatment. According to the Virginia Code, the Special Justice must allow the individual an opportunity for voluntary admission and must decide if the individual is willing and capable of seeking voluntary hospitalization. If it is decided that the individual is willing to accept a voluntary admission and is capable of making that choice, the Special Justice will require the individual to be hospitalized as a Court Mandated Admission (CMA). When that happens, no testimony is taken and the hearing is concluded.

A formal commitment hearing is held and testimony is taken only if the individual refuses voluntary hospitalization or is found incapable of making that decision, or if the Special Justice agrees with the Petitioner’s objection to allowing a voluntary admission. The Special Justice will then hear the testimony of the Petitioner and any other witnesses and decide on the disposition. During the hearing, the individual is not required to testify but may choose to do so. At the conclusion of the hearing, the individual will be either committed to inpatient treatment or ordered into Mandatory Outpatient Treatment, or the TDO will be dismissed. A voluntary admission under a CMA is no longer an option.

The possible outcomes of the hearing process include the following:

Dismissal of the Petition – If the Special Justice decides that a technical error occurred during the issuance of the TDO, they may dismiss the petition for involuntary hospitalization. The petition can also be dismissed if the Special Justice decides that the evidence is not strong enough to order a commitment. When the petition is dismissed, the individual is free to leave the hospital and is under no legal obligation to receive any type of psychiatric treatment. Dismissal of the petition does not prevent the individual from voluntarily staying in the hospital if they agree to remain in the hospital and are accepted for admission.

Court-Mandated Admission (CMA) – According to the Virginia Code, the Special Justice “shall afford” the individual “an opportunity for voluntary admission” if the individual is determined by the Special Justice to be “willing and capable of seeking voluntary admission.”  This is referred to as a Court-Mandated Admission (CMA). When the Special Justice permits the individual to be a CMA, the individual is required to accept a “minimum period of treatment.” According to the Virginia Code, the individual is required to stay in the hospital for a minimum of 72 hours and, after that period, is required to give 48 hours notice of their desire to leave the hospital. The individual is required to remain in the hospital during that 48-hour period unless discharged by the hospital. This effectively means that the individual would remain in the hospital for a minimum of five days after the hearing, unless discharged sooner. When the individual is permitted to stay in the hospital as a CMA, a commitment cannot be ordered. In Fairfax County, approximately 50% of all TDO cases result in a CMA.

Commitment – When the Special Justice orders a commitment, the individual is under a court order to be involuntarily admitted to the hospital and is required to remain in the hospital for a maximum period of 30 days, unless discharged sooner. To be committed, the Special Justice must find, by clear and convincing evidence, that:

1. The individual has a mental illness and there is a substantial likelihood that, as a result of mental illness, the individual will, in the near future, (a) cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information, if any, or (b) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs, and
2. The alternatives to involuntary inpatient treatment have been investigated and deemed unsuitable and there is no less restrictive alternative to involuntary inpatient treatment.

Individuals under commitment can be discharged from the hospital without further involvement of the court or they can be “re-committed.”

Re-Commitment - Occurs when another TDO is issued prior to the expiration of the original commitment order and a second commitment hearing is held. If the individual is “re-committed” at that hearing, the duration of the commitment is a maximum of 180 days.

An individual can appeal a commitment or recommitment order to the Circuit Court. The appeal must be filed within 10 days of the court order.

Mandatory Outpatient Treatment (MOT) – The Special Justice can order the individual to participate in a period of outpatient treatment. This is referred to as Mandatory Outpatient Treatment (MOT). The duration of the MOT is determined by the Special Justice based on the recommendations of the CSB but cannot exceed 180 days. When MOT is ordered, the patient is released from the hospital. To order MOT, the Special Justice must find, by clear and convincing evidence, that:

• The individual has a mental illness and there exists a substantial likelihood that, as a result of mental illness, the person will, in the near future, (a) cause serious physical harm to themselves or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information, if any, or (b) suffer serious harm due to their lack of capacity to protect themselves from harm or to provide for their basic human needs; and
• The less restrictive alternatives to involuntary inpatient treatment have been investigated and are deemed appropriate; and
• The individual (a) has sufficient capacity to understand the stipulations of their  treatment, (b) expresses an interest in living in the community and agrees to abide by their treatment plan, and (c) is deemed to have the capacity to comply with the treatment plan and understand and adhere to conditions and requirements of the treatment and services; and
• The ordered treatment can be delivered on an outpatient basis by the CSB or designated provider.

When an individual is ordered to participate in MOT, their compliance with treatment is monitored by the CSB where the individual resides. Failure of the individual to adhere to the terms of the outpatient treatment could result in a revocation of the MOT and an order for commitment to a hospital. Before the MOT expires, it can be continued for a period not to exceed 180 days or it can be rescinded.

The MOT order can also be appealed to the Circuit Court. The appeal must be filed within 10 days of the court order.

At the time that the person is committed at the hearing, the Special Justice may authorize the treating physician to place the person on a period of Mandatory Outpatient Treatment (MOT) when they are discharged from the hospital. This is less formally referred to as a “step-down” MOT.

To authorize the “step-down” MOT, the Special Justice must find by “clear and convincing evidence” that:

1. The person has a history of lack of compliance with treatment for mental illness that at least twice within the past 36 months has resulted in the person being subject to an order for involuntary admission;
2. In view of the person’s treatment history and current behavior, the person is in need of mandatory outpatient treatment following inpatient treatment in order to prevent a relapse or deterioration that would be likely to result in the person meeting the criteria for involuntary inpatient treatment;
3. As a result of mental illness, the person is unlikely to voluntarily participate in outpatient treatment unless the court enters an order authorizing discharge to mandatory outpatient treatment following inpatient treatment; and
4. The person is likely to benefit from mandatory outpatient treatment.

The assessment conducted by the Independent Evaluator must also include a clinical opinion about whether the person meets the criteria for a “step-down” MOT.

Prior to discharging the person to MOT, a discharge plan must be developed by the treating physician and the hospital staff in conjunction with the CSB and the person. The plan must be submitted to the Court for approval, incorporated into the commitment order, and provided to the person. The person should not be discharged to MOT if he/she meets the criteria for involuntary commitment. In addition, the treating physician, based on his professional judgment, must determine that the person:

1. In view of their treatment history and current behavior, no longer needs inpatient hospitalization,
2. Requires mandatory outpatient treatment at the time of discharge to prevent relapse or deterioration of their condition that would likely result in their meeting the criteria for involuntary inpatient treatment,
3. Has sufficient capacity to understand the stipulations of their treatment,
4. Has expressed an interest in living in the community and has agreed to abide by their discharge plan,
5. Is deemed to have the capacity to comply with the discharge plan and understand and adhere to conditions and requirements of the treatment and services, and
6. The ordered treatment can be delivered on an outpatient basis by the CSB or designated provider.

It must also be determined that the treatment services are actually available in the community and the providers of those services have actually agreed to deliver the services.

Finally, if a person is placed on “step-down” MOT,  his/her compliance with the discharge plan is monitored by the CSB where the individual resides. Failure of the individual to adhere to the terms of the discharge plan could result in a revocation of the “step-down” MOT and an order for commitment to a hospital. Also, before the “step-down” MOT expires, it could be continued for a period not to exceed 180 days or it could be rescinded.

What happens after the hearing is determined by two factors:  the disposition reached at the hearing and which hospital the individual had been admitted to under the TDO.

An individual is free to leave the hospital if the TDO was dismissed or if they were placed on MOT at the hearing. If the individual was allowed to voluntarily remain in the hospital as a CMA or was committed to inpatient treatment at the hearing, they must remain in the hospital.

CSB staff determine the hospital where the individual who has been committed to inpatient treatment will be admitted. The individual may be able to stay at the hospital where they were admitted under the TDO or may have to be transferred to another facility. The determination is primarily based on health insurance coverage, bed availability, and whether or not a particular hospital will accept the individual for admission. All attempts will be made to have the individual hospitalized at a local psychiatric facility in Fairfax County. When an individual has to be transferred to another hospital, they are transported by law enforcement staff or an alternative transportation provider.

During the Detention period, the cost of all treatment provided while the individual is hospitalized under the TDO is the responsibility of the individual. When the individual is covered by private health insurance, Medicare, or Medicaid, the hospital can seek reimbursement from the third-party payor. In cases where the individual is not covered by a third-party payor and is demonstrably unable to pay the cost of treatment, the hospital can ask for reimbursement from the Commonwealth of Virginia’s indigent patient fund.

After the Commitment Hearing, the cost of all treatment is also the responsibility of the individual even when they are committed or hospitalized as a CMA. When the individual is covered by insurance, they are admitted to a facility that accepts their insurance and the hospital will seek reimbursement from the third-party payor.

Uninsured individuals are usually referred for hospitalization to the Northern Virginia Mental Health Institute, a state facility, where the cost of treatment is determined by the person’s income level and ability to pay. If space is not available there, the individual may be admitted to a private facility using a state fund that covers the cost of the hospitalization. Concerns about the cost of treatment and the payment for treatment should be directed to a hospital social worker.

Under the Virginia Code, simply being hospitalized under a TDO does not remove the right of the individual to own firearms. Whether or not that right is removed depends on what happens at the commitment hearing. The right is not lost if the TDO is dismissed. However, if the outcome of the hearing is anything other than dismissal, (for example, the individual is voluntarily hospitalized under a CMA, or is committed to inpatient treatment, or is ordered into MOT) the individual loses their right to “purchase, possess, or transport a firearm.” It then becomes illegal for the individual to “purchase, possess or transport a firearm,” a violation of which is considered a Class 1 misdemeanor. After their release from the CMA, the commitment, or the MOT, the individual can “petition” (ask) the General District Court to restore their right.