General assembly makes MOT easier to impose.
Recent MOT History
In the wake of the Virginia Tech tragedy, the Virginia General Assembly enacted legislation in 2008 establishing a defined process through which courts could order individuals to mandatory outpatient treatment ("MOT") in lieu of inpatient psychiatric hospitalization. (5) In so doing, it also imposed increased accountability on the community services boards ("CSBs") to deliver services to individuals and monitor their compliance in the belief that this would ensure another tragedy did not occur. At the same time, the legislation relaxed the "imminent danger" commitment criteria somewhat making it easier to commit an individual. Thereafter, however, MOT was used even less frequently than before the Virginia Tech tragedy. A number of reasons for the decline in its use have been given, including the fact that the MOT criteria is the same as the commitment criteria for inpatient hospitalization and thus too high; the services must actually be available and service providers must actually agree to deliver them; Virginia's 48-hour maximum detention period is too short a timeframe in which to develop the required treatment plan; and the process is overly complicated and too burdensome to implement for both the courts and the CSBs. (6)
Recognizing that the MOT process was not successful and following publication of the New York Study (7) of Kendra's law in the summer of 2009, the General Assembly enacted a "step-down" MOT process in 2010 to permit a court to order mandatory outpatient commitment following a period of inpatient commitment if the treating physician certifies a number of factors at the time of discharge. Although designed as an outpatient commitment process, the New York study revealed that Kendra's law was used most frequently as a "conditional release" form of outpatient treatment following inpatient treatment. The goal of the Virginia legislation was to permit the court to order a person to MOT following a period of inpatient hospitalization without the necessity of returning to court to obtain a new order. Rather than utilizing the commitment criteria, the General Assembly amended Virginia Code [section] 37.2-817 enacting a two-prong test in new subsections C1 and C2 permitting a court to commit an individual to inpatient hospitalization and then authorize mandatory outpatient treatment following a period of inpatient treatment if the court finds that the individual meets further specific criteria, namely:
(i) 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...;(ii) 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; (iii) 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 (iv) the person is likely to benefit from mandatory outpatient treatment.
At the time of discharge from the period of inpatient hospitalization, the language in subsection C2 prior to this year's amendment permits the treating physician to discharge the person to mandatory treatment if he determines that
the person (a) in view of [his] treatment history and current behavior, no longer needs inpatient hospitalization, (b) requires mandatory outpatient treatment at the time of discharge to prevent relapse or deterioration of his condition that would likely result in his meeting the criteria for involuntary inpatient treatment, (c) has sufficient capacity to understand the stipulations of his treatment, (d) has expressed an interest in living in the community and has agreed to abide by his discharge plan, (e) 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 (f) the ordered treatment can be delivered on an outpatient basis by the community services board or designated provider; and (2) at the time of discharge, services are actually available in the community and providers of services have actually agreed to deliver the services.
Until this year's amendment and as a compromise, this "step-down" MOT would only last for the maximum period of the initial commitment order, or 30 days, unless a new petition to continue the outpatient treatment is filed with the court and ordered.
No evaluation of Virginia's "step-down" process has been completed, but anecdotal information indicates that it, too, is seldom used because of the complexity of the process, the difficulty in proving the person meets the added "step-down" criteria within the 48-hour time frame to conduct a hearing, the lack of available services in the community, and the shortness of the order. The New York Study and other studies (8) also reveal that a minimum of 180 days of mandatory outpatient treatment is needed to be effective to promote an individual's voluntary adherence to a treatment regimen and prevent future inpatient hospitalizations.
House Bill 475--MOT Criteria Change
House Bill 475 passed this Session first simplifies the criteria for ordering MOT in lieu of inpatient hospitalization found in Virginia Code [section] 37.2-817.D. It retains the two prong civil commitment criteria for inpatient hospitalization, but permits the court to order MOT if it finds that less restrictive alternatives to involuntary inpatient treatment are appropriate and the "(c) person has agreed to abide by his treatment plan and has the ability to do so; and (d) the ordered treatment will be delivered on an outpatient basis by the community services board or designated provider to the person."
House Bill 475 also simplifies somewhat the findings the treating physician must make under [section] 37.2-817.C2 quoted above prior to discharging a person to MOT following a period of involuntary hospitalization. The physician will now be required to find that "(i) the person (a) in view of [his] treatment history and current behavior, no longer needs inpatient hospitalization, (b) requires mandatory outpatient treatment at the time of discharge to prevent relapse or deterioration of his condition that would likely result in his meeting the criteria for involuntary inpatient treatment, and (c) has agreed to abide by his discharge plan and has the ability to do so; and (ii) the ordered treatment will be delivered on an outpatient basis by the community services board or designated provider to the person."
House Bill 475 also increases the maximum length of the combined inpatient and "step-down" order from 30 days to 90 days. Although a court may now judicially authorize administration of medication over a person's objection to a person who is subject to an order of outpatient treatment under Virginia Code [section] 37.2-1102(3), House Bill 475 also clarifies that restraint or physical force cannot be used to administer mediations to individuals who are subject to a MOT order.
House Bill 476--MOT for Voluntary Patients
In a more radical extension of the use of MOT, House Bill 476 will permit an individual who is the subject of a temporary detention order and elects to voluntarily admit himself to a psychiatric facility to be subjected to a MOT order upon discharge. For many years, Virginia Code [section] 37.2-814 has required the court at the beginning of a commitment hearing to offer the individual the opportunity to apply for voluntary admission in lieu of proceeding with the commitment hearing. Effective July 1, 2012, a treating physician, a family member or a personal representative of the person, or the CSB serving the area where the facility is located may file a "motion" with the court to subject this person to MOT. To be ordered to MOT, a voluntary patient who was the subject of a temporary detention order prior to the voluntary admission, must on at least two previous occasions within 36 months preceding the date of the hearing have been the subject of a temporary detention order and voluntarily admitted himself or been involuntarily committed. Upon the filing of such a motion, the court must hold a hearing prior to the person's discharge and within 72 hours, (9) (not 48 hours as is required when a temporary detention order has been issued) to determine whether the person should be ordered to MOT under subsection D of [section] 37.2-817, the subsection pertaining to MOT in lieu of inpatient hospitalization, and not subsection C1 and C2 pertaining to "step-down" MOT.
The Virginia General Assembly has thus expanded the use of MOT for both individuals involuntarily committed and certain individuals subject to involuntary commitment proceedings who voluntarily admit themselves. It has also lengthened the period of the initial outpatient treatment order to 90 days. Extension of the MOT period still falls short of the 180 days that research shows is necessary for it to be effective in achieving treatment adherence and preventing future hospitalizations, but it will at least provide sufficient time to permit a treatment plan to be initiated and some indication of whether the plan will be successful or not. More time will therefore be available to petition for its extension under Virginia Code [section] 37.2-817.4. The criteria is a little less cumbersome than the current law to implement, but probably not sufficiently less cumbersome to enable its more widespread use.
Most unfortunate is that at a time when advocates and mental health professionals are trying to move the system away from a coercive model of treatment and develop strategies to increase voluntary treatment and reduce stigma, House Bill 476 will subject those accepting voluntary treatment to the threat of additional coercive orders. It may therefore have the opposite effect of encouraging individuals to accept voluntary treatment. Research has shown that people will adhere to treatment much more effectively on a voluntary basis than when they feel coerced, and many will avoid treatment altogether for fear that involuntary and ineffective treatment will be imposed, (10) In order to implement an effective, but limited MOT system, the process must be further streamlined. Most importantly, the availability of voluntary mental health services needs to become more readily available and effective strategies need to be implemented to encourage their access on a voluntary basis, rather than the need to resort to additional coercive measures, as this legislation does.
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|Title Annotation:||2012 Virginia General Assembly Update|
|Publication:||Developments in Mental Health Law|
|Date:||Apr 1, 2012|
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