The well-documented rise in the number of people being subjected to involuntary mental health commitments in Virginia in recent years is alarming. As a new statewide work group seeks to reform related laws, the interests of public safety and individual constitutional rights must be balanced.

A properly run and adequately funded system of mental health services is a requirement of civilized society. Such a system must respect due process and the privacy rights of people with mental illness. Any reform legislation must ensure that we never treat someone as a criminal simply because the state did not provide adequate funding for mental health facilities and for adequate transportation services to those locations.

The ACLU of Virginia is opposed to involuntary civil commitment — or other types of temporary custody — for any of the following reasons (or other reasons unrelated to patient therapeutic needs or public safety):

  • The exercise of constitutional rights;
  • Nonconformity or social deviance;
  • Unpopular political expression; or
  • Annoying members of an individual’s family, community or public officials.

Involuntary civil commitment and other forms of custody should only be used as a last resort for people in need of mental health services. Those people must also refuse to voluntarily and without coercion commit themselves to a mental health facility after an appropriate mental health evaluation concludes they are in need of services.

Mental disability [or psychiatric disability] cannot by itself be a justifiable reason for depriving a person of liberty against his or her objection unless it has been judicially found that an individual is a danger to himself or others, and no other less restrictive, alternative environment is suitable. All other possible options to involuntary custody should be considered and eliminated before a decision is reached. No person should be involuntarily held without having been offered a full and free opportunity to become a voluntary patient without the use of coercion.

Court-ordered temporary detention periods should be as brief as possible, but last no longer than 72 hours without a mandatory hearing to avoid violating the due process rights of the person in custody. Court-ordered emergency custody periods also should be as brief as possible. While there is a need for procedures that allow for emergency court-ordered psychiatric examinations, no person should ever be held in a nontherapeutic environment for an unnecessarily long time period.

Extended involuntary periods in nontherapeutic settings not only violate the constitutional rights of Virginians, they also expose individuals to an unhealthy environment and one that could exacerbate mental health issues.

People held involuntarily should be held in the least restrictive environment to be evaluated by qualified medical professionals, and in no circumstances be held in jails or prisons. Individuals who have mental illness are not criminals. It is an unjustifiable deprivation of liberty to detain someone in a facility that is not properly staffed and equipped to provide a meaningful medical evaluation and, if necessary, treatment.

Those held involuntarily have the right to an attorney at every step of the judicial process. Qualified, independent counsel should be appointed by the court if a person cannot select or afford an attorney. Individuals should have complete access to communicate with their attorney and with medical professionals. If extensions of emergency custody periods are being considered that are significantly beyond the eight hours currently allowed by law, those people also should be granted a hearing.

Due process requires that individuals in custody have a full chance to prepare for judicial proceedings and to make an informed defense. They must receive advance written notice of judicial proceedings, have the right to be present at such proceedings, and have access to all records relevant to his or her case.

Lastly, policymakers should consider supporting a change to the law regarding felony assault on a police officer. This charge all too often is applied to people experiencing mental health crises who might commit an act as minor as spitting on an officer while being taken into emergency custody.

It is wrong to felonize people in crisis who act out without endangering anyone’s life or causing any physical harm. These charges result in needless incarceration and felonization of individuals in need of help, with all of the resulting collateral consequences of a felony conviction, including loss of voting rights and limitations on employment.

The bottom line is reform is needed but cannot come at the cost of the personal freedoms of an already vulnerable population.

Claire Guthrie Gastañaga is the executive director of ACLU of Virginia. Contact her at acluva@acluva.org.

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