37.2-808 - Emergency custody; issuance and execution of order.
§ 37.2-808. Emergency custody; issuance and execution of order.
A. Any magistrate shall issue, upon the sworn petition of any responsibleperson, treating physician, or upon his own motion, an emergency custodyorder when he has probable cause to believe that any person (i) has a mentalillness and that there exists a substantial likelihood that, as a result ofmental illness, the person will, in the near future, (a) cause seriousphysical 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 fromharm or to provide for his basic human needs, (ii) is in need ofhospitalization or treatment, and (iii) is unwilling to volunteer orincapable of volunteering for hospitalization or treatment. Any emergencycustody order entered pursuant to this section shall provide for thedisclosure of medical records pursuant to § 37.2-804.2. This subsection shallnot preclude any other disclosures as required or permitted by law.
When considering whether there is probable cause to issue an emergencycustody order, the magistrate may, in addition to the petition, consider (1)the recommendations of any treating or examining physician or psychologistlicensed in Virginia, if available, (2) any past actions of the person, (3)any past mental health treatment of the person, (4) any relevant hearsayevidence, (5) any medical records available, (6) any affidavits submitted, ifthe witness is unavailable and it so states in the affidavit, and (7) anyother information available that the magistrate considers relevant to thedetermination of whether probable cause exists to issue an emergency custodyorder.
B. Any person for whom an emergency custody order is issued shall be takeninto custody and transported to a convenient location to be evaluated todetermine whether the person meets the criteria for temporary detentionpursuant to § 37.2-809 and to assess the need for hospitalization ortreatment. The evaluation shall be made by a person designated by thecommunity services board who is skilled in the diagnosis and treatment ofmental illness and who has completed a certification program approved by theDepartment.
C. The magistrate issuing an emergency custody order shall specify theprimary law-enforcement agency and jurisdiction to execute the emergencycustody order and provide transportation. However, in cases in which theemergency custody order is based upon a finding that the person who is thesubject of the order has a mental illness and that there exists a substantiallikelihood that, as a result of mental illness, the person will, in the nearfuture, suffer serious harm due to his lack of capacity to protect himselffrom harm or to provide for his basic human needs, the magistrate mayauthorize transportation by an alternative transportation provider, includinga family member or friend of the person who is the subject of the order, arepresentative of the community services board, or other transportationprovider with personnel trained to provide transportation in a safe manner,upon determining, following consideration of information provided by thepetitioner; the community services board or its designee; the locallaw-enforcement agency, if any; the person's treating physician, if any; orother persons who are available and have knowledge of the person, and, whenthe magistrate deems appropriate, the proposed alternative transportationprovider, either in person or via two-way electronic video and audio ortelephone communication system, that the proposed alternative transportationprovider is available to provide transportation, willing to providetransportation, and able to provide transportation in a safe manner. Whentransportation is ordered to be provided by an alternative transportationprovider, the magistrate shall order the specified primary law-enforcementagency to execute the order, to take the person into custody, and to transfercustody of the person to the alternative transportation provider identifiedin the order. In such cases, a copy of the emergency custody order shallaccompany the person being transported pursuant to this section at all timesand shall be delivered by the alternative transportation provider to thecommunity services board or its designee responsible for conducting theevaluation. The community services board or its designee conducting theevaluation shall return a copy of the emergency custody order to the courtdesignated by the magistrate as soon as is practicable. Delivery of an orderto a law-enforcement officer or alternative transportation provider andreturn of an order to the court may be accomplished electronically or byfacsimile.
Transportation under this section shall include transportation to a medicalfacility as may be necessary to obtain emergency medical evaluation ortreatment that shall be conducted immediately in accordance with state andfederal law. Transportation under this section shall include transportationto a medical facility for a medical evaluation if a physician at the hospitalin which the person subject to the emergency custody order may be detainedrequires a medical evaluation prior to admission.
D. In specifying the primary law-enforcement agency and jurisdiction forpurposes of this section, the magistrate shall order the primarylaw-enforcement agency from the jurisdiction served by the community servicesboard that designated the person to perform the evaluation required insubsection B to execute the order and, in cases in which transportation isordered to be provided by the primary law-enforcement agency, providetransportation. If the community services board serves more than onejurisdiction, the magistrate shall designate the primary law-enforcementagency from the particular jurisdiction within the community services board'sservice area where the person who is the subject of the emergency custodyorder was taken into custody or, if the person has not yet been taken intocustody, the primary law-enforcement agency from the jurisdiction where theperson is presently located to execute the order and provide transportation.
E. The law-enforcement agency or alternative transportation providerproviding transportation pursuant to this section may transfer custody of theperson to the facility or location to which the person is transported for theevaluation required in subsection B, G, or H if the facility or location (i)is licensed to provide the level of security necessary to protect both theperson and others from harm, (ii) is actually capable of providing the levelof security necessary to protect the person and others from harm, and (iii)in cases in which transportation is provided by a law-enforcement agency, hasentered into an agreement or memorandum of understanding with thelaw-enforcement agency setting forth the terms and conditions under which itwill accept a transfer of custody, provided, however, that the facility orlocation may not require the law-enforcement agency to pay any fees or costsfor the transfer of custody.
F. A law-enforcement officer may lawfully go or be sent beyond theterritorial limits of the county, city, or town in which he serves to anypoint in the Commonwealth for the purpose of executing an emergency custodyorder pursuant to this section.
G. A law-enforcement officer who, based upon his observation or the reliablereports of others, has probable cause to believe that a person meets thecriteria for emergency custody as stated in this section may take that personinto custody and transport that person to an appropriate location to assessthe need for hospitalization or treatment without prior authorization. Alaw-enforcement officer who takes a person into custody pursuant to thissubsection or subsection H may lawfully go or be sent beyond the territoriallimits of the county, city, or town in which he serves to any point in theCommonwealth for the purpose of obtaining the assessment. Such evaluationshall be conducted immediately. The period of custody shall not exceed fourhours from the time the law-enforcement officer takes the person intocustody. However, upon a finding by a magistrate that good cause exists togrant an extension, the magistrate shall issue an order extending the periodof emergency custody one time for an additional period not to exceed twohours. Good cause for an extension includes the need for additional time toallow (i) the community services board to identify a suitable facility inwhich the person can be temporarily detained pursuant to § 37.2-809 or (ii) amedical evaluation of the person to be completed if necessary.
H. A law-enforcement officer who is transporting a person who has voluntarilyconsented to be transported to a facility for the purpose of assessment orevaluation and who is beyond the territorial limits of the county, city, ortown in which he serves may take such person into custody and transport himto an appropriate location to assess the need for hospitalization ortreatment without prior authorization when the law-enforcement officerdetermines (i) that the person has revoked consent to be transported to afacility for the purpose of assessment or evaluation, and (ii) based upon hisobservations, that probable cause exists to believe that the person meets thecriteria for emergency custody as stated in this section. The period ofcustody shall not exceed four hours from the time the law-enforcement officertakes the person into custody. However, upon a finding by a magistrate thatgood cause exists to grant an extension, the magistrate shall issue an orderextending the period of emergency custody one time for an additional periodnot to exceed two hours. Good cause for an extension includes the need foradditional time to allow (a) the community services board to identify asuitable facility in which the person can be temporarily detained pursuant to§ 37.2-809, or (b) a medical evaluation of the person to be completed ifnecessary.
I. Nothing herein shall preclude a law-enforcement officer or alternativetransportation provider from obtaining emergency medical treatment or furthermedical evaluation at any time for a person in his custody as provided inthis section.
J. The person shall remain in custody until a temporary detention order isissued, until the person is released, or until the emergency custody orderexpires. An emergency custody order shall be valid for a period not to exceedfour hours from the time of execution. However, upon a finding by amagistrate that good cause exists to grant an extension, the magistrate shallextend the emergency custody order one time for a second period not to exceedtwo hours. Good cause for an extension includes the need for additional timeto allow (i) the community services board to identify a suitable facility inwhich the person can be temporarily detained pursuant to § 37.2-809 or (ii) amedical evaluation of the person to be completed if necessary. Any familymember, as defined in § 37.2-100, employee or designee of the local communityservices board as defined in § 37.2-809, treating physician, orlaw-enforcement officer may request the two-hour extension.
K. If an emergency custody order is not executed within four hours of itsissuance, the order shall be void and shall be returned unexecuted to theoffice of the clerk of the issuing court or, if such office is not open, toany magistrate serving the jurisdiction of the issuing court.
L. Payments shall be made pursuant to § 37.2-804 to licensed health careproviders for medical screening and assessment services provided to personswith mental illnesses while in emergency custody.
(1995, c. 844, § 37.1-67.01; 1996, c. 893; 1998, c. 611; 2004, c. 737; 2005,c. 716; 2007, c. 7; 2008, cc. 202, 551, 691, 775, 779, 782, 784, 793, 850,870; 2009, cc. 21, 112, 383, 455, 555, 607, 697, 838; 2010, cc. 778, 825.)