Commitment of Mentally Ill Individuals

Virginia’s civil commitment system for hospitalizing mentally ill individuals involuntarily is a multi-phase process that requires the services and coordination of several individuals and agencies.

In emergency situations involving a mentally ill individual, a person can contact the emergency services of the particular city or county in which the person is located and ask that they evaluate an individual for possible commitment. If in the mind of the evaluator (usually a social worker or a psychologist) the individual meets the criteria, the evaluator goes to the magistrate to get a temporary detention order. The temporary detention order allows the sheriff’s department or local police force to take the mentally ill individual into custody and transport him or her to whatever hospital has a bed available. A petition is then filed by a family member, friend or other individual familiar with the mentally ill individual to commit the individual. Within 48 hours, the individual is entitled to a hearing as a result of the petition, which takes place in a hospital conference room with an attorney appointed to represent the individual. The individual filing the petition, the “petitioner,” appears and states their evidence at the hearing. Also present at the hearing are a psychologist appointed to evaluate the patient as well as an attorney appointed to represent the patient. If the petitioner proves by clear and convincing evidence that the mentally ill individual will, in the near future, (1) cause serious physical harm to himself or others, or (2) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs, the special justice or judge for the hearing can commit the individual for up to 30 days in the hospital.

While all of the aforesaid agencies and services are involved in the process, the critical failure of the system is the lack of services provided to the individual who is serving as the petitioner. In most cases, the petitioner proceeds without an attorney and must litigate an actual legal proceeding to commit the mentally ill individual against an attorney appointed by the court to represent the mentally ill individual. This has oftentimes led to dysfunction within the system and has resulted in many seriously mentally ill individuals not receiving the services they require.

What many individuals do not know is the law allows the petitioner to hire their own attorney to represent them in their efforts to commit the mentally ill individual in the hearing process. When the petitioner appears at the commitment hearing, this oftentimes greatly “levels the playing field” as the mentally ill individual is no longer the only party represented by an attorney.

Our firm’s founder, John Whitbeck, has developed a successful boutique practice in the area of mental illness law, most notably in the representation of petitioners in commitment cases. Mr. Whitbeck has not only litigated hundreds of these cases as an attorney, but he also formerly served as a special justice (judge) for these hearings. Mr. Whitbeck is also the director of the George Mason Law and Mental Illness Clinic, which exists to counter this lack of services for the petitioner by providing pro bono legal representation to petitioners in the commitment hearings.