Virginia HB 135: Emergency custody and temporary detention; transportation of person when transfer of custody.

Bill Text

2022SESSION
INTRODUCED
22102457D
1 HOUSEBILLNO.135
2 OfferedJanuary12,2022
3 PrefiledJanuary7,2022
4 A BILL to amend and reenact §§ 37.2-808 and 37.2-810 of the Code of Virginia, relating to emergency
5 custody and temporary detention; transportation; transfer of custody.
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Patrons––Cherry,AndersonandDurant
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8 ReferredtoCommitteeforCourtsofJustice
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10 Be it enacted by the General Assembly of Virginia:
11 1. That §§37.2-808 and 37.2-810 of the Code of Virginia are amended and reenacted as follows:
12 §37.2-808. Emergency custody; issuance and execution of order.
13 A. Any magistrate shall issue, upon the sworn petition of any responsible person, treating physician,
14 or upon his own motion, or a court may issue pursuant to § 19.2-271.6, an emergency custody order
15 when he has probable cause to believe that any person (i) has a mental illness and that there exists a
16 substantial likelihood that, as a result of mental illness, the person will, in the near future, (a) cause
17 serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or
18 threatening harm and other relevant information, if any, or (b) suffer serious harm due to his lack of
19 capacity to protect himself from harm or to provide for his basic human needs, (ii) is in need of
20 hospitalization or treatment, and (iii) is unwilling to volunteer or incapable of volunteering for
21 hospitalization or treatment. Any emergency custody order entered pursuant to this section shall provide
22 for the disclosure of medical records pursuant to § 37.2-804.2. This subsection shall not preclude any
23 other disclosures as required or permitted by law.
24 When considering whether there is probable cause to issue an emergency custody order, the
25 magistrate may, in addition to the petition, or the court may pursuant to § 19.2-271.6, consider (1) the
26 recommendations of any treating or examining physician or psychologist licensed in Virginia, if
27 available, (2) any past actions of the person, (3) any past mental health treatment of the person, (4) any
28 relevant hearsay evidence, (5) any medical records available, (6) any affidavits submitted, if the witness
29 is unavailable and it so states in the affidavit, and (7) any other information available that the magistrate
30 or the court considers relevant to the determination of whether probable cause exists to issue an
31 emergency custody order.
32 B. Any person for whom an emergency custody order is issued shall be taken into custody and
33 transported to a convenient location to be evaluated to determine whether the person meets the criteria
34 for temporary detention pursuant to § 37.2-809 and to assess the need for hospitalization or treatment.
35 The evaluation shall be made by a person designated by the community services board who is skilled in
36 the diagnosis and treatment of mental illness and who has completed a certification program approved
37 by the Department.
38 C. The magistrate or court issuing an emergency custody order shall specify the primary
39 law-enforcement agency and jurisdiction to execute the emergency custody order and provide
40 transportation. However, the magistrate or court shall consider any request to authorize transportation by
41 an alternative transportation provider in accordance with this section, whenever an alternative
42 transportation provider is identified to the magistrate or court, which may be a person, facility, or
43 agency, including a family member or friend of the person who is the subject of the order, a
44 representative of the community services board, an employee of or person providing services pursuant to
45 a contract with the Department, or other transportation provider with personnel trained to provide
46 transportation in a safe manner, upon determining, following consideration of information provided by
47 the petitioner; the community services board or its designee; the local law-enforcement agency, if any;
48 the person's treating physician, if any; or other persons who are available and have knowledge of the
49 person, and, when the magistrate or court deems appropriate, the proposed alternative transportation
50 provider, either in person or via two-way electronic video and audio or telephone communication
51 system, that the proposed alternative transportation provider is available to provide transportation, willing
52 to provide transportation, and able to provide transportation in a safe manner.
53 When transportation is ordered to be provided by an alternative transportation provider, the
54 magistrate or court shall order the specified primary law-enforcement agency to execute the order, to
55 take the person into custody, and to transfer custody of the person to the alternative transportation
56 provider identified in the order. The primary law-enforcement agency may transfer custody of the person
57 to the alternative transportation provider immediately upo