Spurred largely in response to the Virginia Tech shootings in April 2007,
Virginia passed changes in its mental health law in March affecting standards
for involuntary commitment. The new legislation also drew from the ongoing
work of the state's Commission on Mental Health Law Reform, established six
months before the campus tragedy.
A new criterion for involuntary admission to a "psychiatric inpatient
facility for treatment" lies at the heart of the legislation. The old
standard emphasizing "imminent danger" to self or others was
replaced by "a substantial likelihood that, in the near future, he or
she will cause serious physical harm to himself or herself or another
person..." or "will suffer serious harm due to substantial
deterioration of his or her capacity to protect himself or herself from such
harm or to provide for his or her basic human needs."
Representatives of the commission, the Virginia Tech Review Panel,
legislative leaders, and Gov. Tim Kaine's (D) office agreed on a set of
reforms for the legislative session that ended in March. Lawmakers also agreed
to Kaine's proposal to allocate $42 million over two years for case management
and emergency services for people with mental illness.
Richard Bonnie, J.D.: "Our goal was to promote consistency by
trying to give more guidance to judges who make commitment
Photo courtesy of University of Virginia School of
"These issues [addressed in the new law] were well understood by
everyone," commission chair Richard Bonnie, J.D., told Psychiatric
News. "I think we had quite a successful session for what is really
a first step in an ongoing effort."
Bonnie is the Harrison Foundation Professor of medicine and law, a
professor of psychiatry and neurobehavioral sciences, and director of the
Institute of Law, Psychiatry, and Public Policy at the University of Virginia
School of Law. Bonnie is also a consultant to APA's Committee on Psychiatry
During the legislative process, the Psychiatric Society of Virginia (PSV)
allied with other medical organizations and, in an effort led by the Medical
Society of Virginia, pushed for expanded access to care for patients, higher
standards of care, and patient privacy, said PSV President Steve Brasington,
M.D., in an interview. On some counts, however, they came away
"They've moved from a higher standard to a lower one," said
Brasington, a U.S Navy captain and director of mental health at the Naval
Medical Center in Portsmouth, va.
For one thing, said Brasington, a physician or even a doctoral-level
psychologist will no longer be required to evaluate a person for commitment.
An employee of the local community services board may do so.
Doctors were also removed from the commitment process to eliminate the
appearance of financial conflict of interest should patients be committed to
the doctor's own facility, Brasington believes. This possibility is remote,
however, because facilities often lose money on the care of involuntary
patients, and doctors are not reimbursed for the time spent at hearings, he
However, the status of who performs assessments reflects reality, Bonnie
"The problem is that in many parts of the state, there are no
psychiatrists or psychologists available, so the law will allow a licensed
counselor or social worker to be appointed as an independent examiner,"
Bonnie told Psychiatric News. "Our goal was to promote
consistency by trying to give more guidance to judges who make commitment
Further, the statutory change requiring an independent examination was made
almost 15 years ago, not by the commission, and it did not exclude the
treating physician or others from the commitment process, explained Bonnie.
The task force did consider how financial incentives have changed, but decided
to retain the independent examination requirement.
"I do not feel that the psychiatrists' point of view was
overlooked," he said. "I believe that this is a case of variance
bet ween percept ions (which we need to correct) and reality."
The old commitment standard was open to broad interpretation, and so the
new one might seem either looser or more restrictive, depending on one's point
of view, said Bonnie. While dangerousness seemed the most salient issue to the
public over the last year, in fact an earlier study found that a"
substantial inability to care for oneself" was the only reason
for about half of all commitments in the state.
Virginia psychiatrists also were concerned about where persons committed
under the new law would be placed.
Brasington fears that more people would be committed under the new law,
increasing the demand for inpatient psychiatric beds at a time when hospitals
are cutting those beds because of poor reimbursement from insurers.
Without inpatient hospital beds allocated to mental health, some patients
who are committed could tie up emergency department slots for several nights,
controlled with multiple doses of medications, until they are stable enough to
go home, said Brasington. That would defeat the purpose of commitment.
Bonnie disagreed. There is a shortage of beds in some parts of the state,
he said, but not in most regions. Increasing the number of places for people
who need beds would help, but beds in crisis-stabilization facilities may be
an alternative to acute hospitalization for some individuals who are now being
admitted to emergency rooms and hospitals for evaluations. Those services
would be enhanced by a "major part" of the additional $42 million
budgeted for mental health, so that inpatient rates would rise less than some
fear, said Bonnie.
Some mental health consumer groups also raised concerns about medical or
psychiatric records becoming public once they are reviewed by a judge as part
of the commitment process.
Under the old law, a patient had to affirmatively invoke confidentiality
for his or her medical records. Seung Hui Cho, the gunman in the Virginia Tech
killings, never did so, and his records became public after the shooting.
Under the new law, the patient's medical and court records will be kept
confidential at the court level, said Bonnie.
"Any disclosure can only happen with good cause and refer only to the
court's order, not the person's health history," he said. "The
overall approach is that this is a therapeutic process, and only [sufficient]
disclosure needed for an informed decision is permitted."
More changes could come in the future, said Bonnie.
The Commission on Mental Health Law Reform, organized in 2006 by the chief
justice of the Virginia Supreme Court, was originally scheduled to produce its
final report late this year.
Despite that plan, greater public awareness following the Virginia Tech
tragedy nevertheless led the commission to issue a preliminary report last
December and to present specific reforms that could be taken up by the 2008
Brasington said some psychiatrists felt excluded from the composition and
purpose of the commission, which included only two physicians, both
psychiatrists, who work as state administrators, but none from academia or
However, besides those two psychiatrists, at least five others were on the
task forces that supported the commission, including three from the University
of Virginia psychiatry department, said Bonnie.
"We just didn't realize that the psychiatrists with whom we were
working on the commission and the commitment task force were not serving a
liaison function with the psychiatric society," he said. "I had no
idea that the PSV felt excluded. We will take remedial action."
Information about the Commission on Mental Health Law Reform is