SB 119 — Involuntary temporary detention; disclosure of health records.

SESSION ENROLLED VIRGINIA ACTS OF ASSEMBLY ––-- 2022 SESSION CHAPTER E474 An Act to amend and reenact § 37.2-809 of the Code of Virginia, relating to involuntary temporary detention;

R O [S 119] Approved LApril L11, 2022 Be it enacted by the General Assembly of Virginia:

E § 37.2-809.

DA. "Designee of the local community services board" means an examiner designated by the local community services board who (i) is skilled in the assessment and treatment of mental illness, (ii) has completed a certification program approved by the Department, (iii) is able to provide an independent examination of the person, (iv) is not related by blood or marriage to the person being evaluated, (v) has no financial interest in the admission or treatment of the person being evaluated, (vi) has no investment interest in the facility detaining or admitting the person under this article, and (vii) except for employees of state hospitals and of the U.S.

DepartmentFor ofthe Veteranspurposes Affairs,of isthis notsection: employed by the facilBty.

"Employee""Designee of the local community services board" means an employeeexaminer ofdesignated by the local community services board who (i) is skilled in the 1assessment Department.andand treatment of mental illnessillness, and(ii) has completed a certification program approved bEby the "InvestmentDepartment, interest"(iii) meansis able to provide an independent no financial interest in the ownershipadmission or holdingtreatment of anthe equityperson orbeing debtevaluated, security,(vi) includinghas sharesno ofinvestments stockinterest in athe corporation,facility interestsdetaining or unitsadmitting ofthe aperson partnership,under bonds,this debentures,article, notes,and or(vii) otherexcept equityfor oremployees debtof instruments.state hospitals and of the U.S.

Department of Veterans Affairs, is not employed by the facility.

"Employee" means an employee of the local community services board who is skilled in the assessment and treatment of mental illness and has completed a certification program approved by the Department.

"Investment interest" means the ownership or holding of an equity or debt security, including shares of stock in a corporation, interests or units of a partnership, bonds, debentures, notes, or other equity or debt instruments.

A magistrate shall issue, upon the sworn petition of any responsible person, treating physician, or upon his own motion and only after an evaluation conducted in-person or by means of a two-way electronic video and audio communication system as authorized in § 37.2-804.1 by an employee or a designee of the local community services board to determine whether the person meets the criteria for temporary detention, a temporary detention order if it appears from all evidence readily available, including any recommendation from a physician, clinical psychologist, or clinical social worker treating the person, that the person (i) has a mental illness and that 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 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;

The magistrate shall also consider, if available, (a) information provided by the person who initiated emergency custody and (b) the recommendations of any treating or examining physician licensed in Virginia either verbally or in writing prior to rendering a decision.

When considering whether there is probable cause to issue a temporary detention order, the magistrate may, in addition to the petition, consider (i) the recommendations of any treating or examining physician, psychologist, or clinical social worker licensed in Virginia, if available, (ii) any past actions of the person, (iii) any past mental health treatment of the person, (iv) any relevant hearsay evidence, (v) any medical records available, (vi) any affidavits submitted, if the witness is unavailable and it so states in the affidavit, and (vii) any other information available that the magistrate considers relevant to the determination of whether probable cause exists to issue a temporary detention order.sidersorder. D.

D.

An employee or a designee of the local community services board shall determine the facility of temporary detention in accordance with the provisions of § 37.2-809.1 for all individuals detained thepursuant facilityto ofthis temporarysection. detention and may designate an alternative facility for temporary detention at any point during the period of temporary detention if it is determined that the alternative facility is a of 3 more appropriate facility for temporary detention of the individual given the specific security, medical, or behavioral health needs of the person.

InAn casesemployee inor whichdesignee of the local community services board may change the facility of temporary detention isand changedmay followingdesignate transferan ofalternative custodyfacility tofor antemporary initialdetention facilityat any point during the period of temporary custody,detention transportationif ofit theis individualdetermined tothat the alternative facility ofis a more appropriate facility for temporary detention shallof bethe providedindividual ingiven accordancethe withspecific thesecurity, provisionsmedical, or behavioral health needs of §the 37.2-810.person.

In cases in which the facility of temporary detention is of 3 changed following transfer of custody to an initial facility of temporary custody, transportation of the individual to the alternative facility of temporary detention shall be provided in accordance with the provisions of § 37.2-810.

For purposes of this section, a health care provider or designee of a local community services board or behavioral health authority shall not be required to encrypt any email containing information or medical records provided to a magistrate unless there is reason to believe that a third party will attempt of 3 to intercept the email.

If the employee or designee of the community services board who is conducting the evaluatEonevaluation pursuant to this section recommends that the person should not be subject to a temporary detention order, such employee or designee shall (i) inform the petitioner, the person who initiated emergency custody if such person is present, and an onsite treating physician of his recommendation;

(ii)Rpromptly(ii) promptly of 3 inform such person who initiated emergency custody that the community services board will facilitate communication between the person and the magistrate if the person disagrees with recommendationOrecommendations ofeof the employee or designee of the community services board who conducted the evaluation and the person who initiated emergency custody so requests;

and (iii) upon prompt request made by the person who initiated emergency custody, arrange for such person who initiated emergency custody to communiLatecommunicate with the magistrate as soon as is practicable and prior to the expiration of the period of emergency custody.

The magistrate shall consider any information provided by the person who initiated emeEgencyemergency custody and any recommendations of the treating or examining physician and the employee or designee of the community services board who conducted the evaluation and consider such information and D recommendations in accordance with subsection B in making his determination to issue a temporary detention order.

The individual who is the subject of emergency custody shall remain in the custody of law enforcement or a designee of law enforcement and shall not be released from emergency custody until communication with the magistrate pursuant to this subsection has concluded and the magistrate has made a determination regarding issuance of a temporary detention order.

For purposes of this section, "person who initiated emergency custody" means any person who initiated the issuance of an emergency custody order pursuant to § 37.2-808 or a law-enforcemenBlaw-enforcement officer who takes a person into custody pursuant to subsection G of § 37.2-808.

1N. services in a hospital emergency department, the treating physician or his designee and the employee or designee of the local community services board shall disclose to each other relevant information pertaining to the individual's treatment in the emergency department.

In any case in which a person subject to an evaluation pursuant to this section is receiving services in a hospital emergency department, the treating physician or his designee and the employee or designee of the local community services board shall disclose to each other relevant information pertaining to the individual's treatment in the emergency department.