About once a month, I receive a panicky telephone call or email from a distraught parent who attempted to get an adult child with a mental disorder involuntarily committed in Fairfax County, Virginia, where I live.
Forcing someone into a hospital for treatment is a desperate act that is traumatic for the person who is ill and their entire family. It should only be done when all other options have failed.
The parents who contact me were stymied by one of the special magistrates who ultimately decide if a person meets the legal criteria to be forced into a hospital. We have three such magistrates in our suburban Washington D.C. county and two of them, Mark H. Bodner and Jose E. Aunon, are known state-wide for being reluctant to approve involuntary commitments.
“My son,” one caller told me, “has a long history of mental illness. He was living in our basement where he was hearing voices and talked about killing himself.”
Another parent said, “Our daughter was violent and her psychiatrist recommended that she be hospitalized.”
In both instances, the Fairfax special magistrates refused to authorize an involuntary commitment, the parents reported.
Parents are not the only ones who have grumbled about magistrates Bodner and Aunon. Several police officers and mental health professionals also have quietly raised concerns about the decisions of both magistrates to me.
So what does the law require when parents reach the point where they feel there is no alternative except an involuntary commitment?
In the December issue of Virginia Lawyer, attorney Molly A. Huffman, who practices at the firm of Hancock, Daniel, Johnson and Nagle, gives an excellent overview of the reforms that the Virginia legislature passed that were, among other things, supposed to loosen the commitment process.
There are two steps in the involuntary commitment process. The first is the issuing of an Emergency Custody Order [ECO] or a Temporary Detention Order [TDO]. Both are used to hold a person against their will so that they can be evaluated. The results of the evaluation is presented at an involuntary commitment hearing before a magistrate.
In her article, Huffman explains the differences between the old and the new criteria.
Before 2008, the standard required clear and convincing evidence that ‘the person presented an imminent danger to himself or others as a result of mental illness or had been proven to be so seriously mentally ill as to be substantially unable to care for himself.’
The high ‘imminent danger’ standard was abandoned and the current law provides for a lower standard of “substantial likelihood’ that the person will cause serious harm to himself or others, or that he will suffer serious harm because of his lack of capacity to protect himself from harm or to provide for his basic human needs.
In addition to the change in commitment criteria from ‘imminent danger’ to ‘substantial likelihood,’ the language ‘unable to care for himself’ was changed to ‘suffer serious harm due to lack of capacity.’
Also, magistrates now ‘shall’ issue ECOs and TDOs if these criteria are met, rather than the previous ‘may’ issue language.
The changes were adopted to get rid of ‘imminent danger’ — a criteria that first became popular in the 1960s and 1970s, but which had been abandoned by many progressive states by 2,000.
Fairfax Magistrate Bodner chaired a special task force in 2006 that was appointed by the late Leroy Rountree Hassell Sr., the former Chief Justice of the Virgina Supreme Court, to rewrite the commitment criteria. I served with Bodner on that task force and genuinely liked him, although we often disagreed. Several task force members were adamantly opposed to getting rid of ‘imminent danger,’ but after the shootings on the Virginia Tech campus that left 33 dead on April 16th, 2007, even those members realized that reforms were inevitable.
The task force was fortunate because one of our members was John Monahan, a psychologist who teaches law at the University of Virginia and is a nationally recognized expert on mental health laws. Richard J. Bonnie, a lawyer and UVA professor, oversaw the commission and also is nationally known for his expertise. Virginia’s new statute is considered so well- crafted that it now serves as a model for other states.
How is it possible then, with a new model law and the legislature’s clear intent to loosen the process, that parents in Fairfax County are still being frustrated by the special magistrates? The answer is simple. A legislature and legal experts can craft the best law possible, but it is still up to independently-minded magistrates to interpret the law.
And Bodner and Aunon have continued to be more averse than their peers when it comes to approving involuntary commitments.
This month, Fairfax County Chief Judge Dennis J. Smith appointed Robert B. Walker, as a third magistrate. Whether he will be more in tune with magistrates in surrounding counties is still to be seen.
Here is what I tell parents who call me. I urge them to read the law and learn it well. If possible, I also urge them to look for a way to get an involuntary commitment hearing in an adjoining county. Until Virginia finds a way to bring uniformity to its commitment system, that’s the best I can offer.
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So, your blog entry really has me going and I’m in NC! But, I’ve emailed NAMI Virginia and NAMI North Virginia as ask them to aid in the education and awareness of the magistrates mentioned. I am also penning my own letter to each and have some others writing to them as well. I’m really surprised no one from your area has commented yet.
Unfortunately most of the psych. beds in Northern VA are in Fairfax County. Try going to a hospital ER that is not in that county and it can be harder to find a facility that will take your loved one. If s/he has no insurance it can be even harder. We’ve found it’s not just the magistrates, but ER mental health staff using very strict interpretations of the law. You tell them all you want about the patient’s recent dangerous behavior, but if s/he can answer a few questions rationally s/he is free to go. Glad to hear about a new magistrate, Pete. Hope I never get to meet him.
Thank you Pete, for publicly holding Fx. County and these Magistrates BY NAME accountable.
Great article in DC Bar on mental illness and law includes info about VA http://www.dcbar.org/for_lawyers/resources/publications/washington_lawyer/february_2012/murder.cfm
In case the magistrates are led to read your blog – another great white paper on decriminalization: http://www.jaapl.org/content/39/4/549.long#xref-ref-27-1
Re: Legal standard of how the law “verifies competency” for a mentally ill person to be “forced” into treatment.
How is it that the law treats the brain as if it were a single function organ, like a femur bone or an eyeball? When the brain malfunctions, not every single cell or even area malfunctions. Why must the law look at a malfunctioning brain as “all or nothing” in a “black and white” standard? It either “understands the gravity of it’s own actions or it doesn’t.” It is either a danger to self/others or it isn’t. The laws must take into account that the brain is a master organ that can be both malfunctioning and diseased and at the same time healthy and functional. The mental health laws for enforced treatment and hospitalization do not take this fact into account.
My brother was able to operate a car and yet not understand that his brain was severely malfunctioning or be able to recognize he has a medical condition. He could take apart a radio and put it back together and still be highly delusional, paranoid, hallucinating and a danger to himself. (I couldn’t take apart a radio and put it back together even if I got a Phd in electrical engineering!) Can’t this point be used to create better laws and standards for enforced treatment? Why can’t the laws include both the standards of danger to self/others (OR) in the best interest (OR) in need of treatment? Because I will personally deliver my schizophrenic brother to the first civil liberties union lawyer or anti-treatment proponent who shouts: “too broad” and “unconstitutional” TO THE FRONT DOOR OF THEIR HOME AND ALLOW THEM TO TAKE CARE OF HIS NEEDS! Sorry to shout, but the frustration is just sometimes unbearable. I’m going to write a book about the system like Pete did and call it: “This is Insane!”