Understanding and Applying Virginia’s New Statutory Civil Commitment Criteria Bruce J. Cohen, M.D. University of Virginia Dept of Psychiatry and Neurobehavioral

Understanding and Applying Virginia’s New Statutory Civil Commitment

Criteria

Bruce J. Cohen, M.D.

University of Virginia

Dept of Psychiatry and Neurobehavioral Sciences

Goals Today

• To review the new statutory language related to the psychiatric civil commitment criteria

• To provide some examples of how the new language in the statute might be applied,

• To promote a common understanding of the commitment criteria across the Commonwealth– Application of these criteria always will depend upon the case at

hand and the evaluator’s individual interpretation. The goal today isn’t to dictate that interpretation, but to highlight key questions that can expected to arise and to allow for discussion, thereby promoting consensus and greater consistency

Previous commitment criteria (from § 37.2-817B):

“After observing the person and obtaining the necessary positive certification and considering any other relevant evidence that may have been offered, if the judge or special justice finds by clear and convincing evidence that

•(i) the person presents an imminent danger to himself or others as a result of mental illness OR• has been proven to be so seriously mentally ill as to be substantially unable to care for himself and . . .”

New commitment criteria (from § 37.2-817C):

“After observing the person and considering (i) the recommendations of any treating physician or psychologist licensed in Virginia, if available, (ii) any past actions of the person, (iii) any past mental health treatment of the person, (iv) any examiner’s certification, (v) any health records available, (vi) the preadmission screening report, and (vii) any other relevant evidence that may have been admitted, if the judge or special justice finds by clear and convincing evidence that:

(a) the person has a mental illness and there is a substantial likelihood that, as a result of mental illness, the person will, in the near future,

(1) 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

(2) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs, and . . .”

New commitment criteria (from § 37.2-817C):

Expected Impact of these Changes• Revised language doesn’t necessarily represent a “broadening” of the criteria:

– There is a tightening of the criteria in some respects (severity of harm and requirement for recent behavioral evidence) but a loosening in other respects (e.g. “near future” rather than “imminent”)

– Changes may be felt more in marginal or “close” cases, rather than in the majority of cases encountered in practice

– Changes might be felt more in those jurisdictions that interpreted the previous criteria very conservatively (e.g. “imminence,” “unable to care for self”) than in jurisdictions who interpreted the old criteria in a fashion similar to the new criteria

• Empirical research in other states indicates that wording changes haven’t been associated with major changes in the number or rate of commitment orders

– System/resource factors (e.g. number of available beds, availability of crisis shelter and outpatient treatment, etc) are more important variables

• Increased funding for crisis stabilization programs and outpatient services (and availability of mandatory outpatient treatment?) should reduce pressure over time on the commitment process.




What is a “Mental Illness”?

“Mental Illness”

• Like most state commitment statutes, Virginia’s commitment statute defines “mental illness" relatively broadly

– “A disorder of thought, mood, emotion, perception, or orientation that significantly impairs judgment, behavior, capacity to recognize reality, or ability to address basic life necessities and requires care and treatment for the health, safety, or recovery of the individual or for the safety of others” (Section 37.2-100).

• While any Axis I major mental disorder might potentially meet this definition, the illness’s symptoms must be severe enough to meet the above definition.

Mood and Anxiety Disorders

• Symptoms of mood disorder (e.g. sadness, nihilistic thinking, suicidal thoughts, and cognitive impairment in Major Depressive Disorder) can range in severity, from so mild that the individual is able to continue to meet all social and occupational demands to being so severe that the individual is acutely psychotic or catatonic

• In addition, some mental illnesses (e.g. Panic Disorder) present with symptoms that are severe, but circumscribed, such that they do not impair judgment, behavior, or the capacity to recognize reality

• Therefore:

1) The individual must have a mental illness

2) The severity and functional impact of the symptoms of the illness must be great enough to impair the individual’s functioning as described above, and

3) The individual must present a risk of harm specifically as a result of mental illness (as opposed to posing a chronic threat of harm for unrelated reasons)

Personality Disorders• A severe personality disorder (e.g. more severe Borderline Personality

Disorder) can be associated with marked instability in interpersonal relationship, self-image, moods, and impulse-control, and therefore with impaired “judgment, behavior, capacity to recognize reality, or ability to address basic life necessities.”

– Such individuals therefore may be subject to civil commitment

• Most individuals with BPD are treated as outpatients, BUT during an interpersonal crisis and/or in the context of other superimposed psychiatric problems (e.g. mood disorder or substance abuse), they pose an increased risk of engaging in potentially harmful behavior toward themselves or others

• HOWEVER, if the personality disorder contributes to a chronically increased risk of engaging in violent behavior (with the increased risk not being attributable to the types of impairment just described), as is the case for many individuals with antisocial personality disorder, the individual would NOT be appropriate for civil commitment.

Substance Abuse• A history of, or current, substance-related disorder (alcohol or drug abuse or dependence)

would not in itself constitute a basis for civil commitment

• HOWEVER, chronic substance use, acute substance intoxication, and/or substance withdrawal all constitute important risk factors in assessing an individual’s risk of harm to self or others or suffering serious harm due to a lack of capacity to protect oneself from harm or provide for basic human needs

• The symptoms of substance-related disorders occur along a continuum of severity, from non-problematic social drinking to “problem drinking” and ultimately all the way to severe substance addiction. More severe substance abuse can cause:

– mood swings similar to those seen in major depressive disorder (including hopelessness and suicidal ideation),

– psychotic symptoms (including voices telling one to kill himself),

– cognitive impairment as severe as that seen in other forms of dementia

• In addition, other psychiatric illnesses, such as mood disorders, psychotic disorders, or personality disorders, can be dramatically exacerbated by substance abuse such that both diagnoses, in synergy, could qualify for civil commitment

Medical conditions with psychiatric features• Medical conditions and psychiatric diagnoses are not mutually exclusive

• Alzheimer's disease or brain injury would qualify as a mental illness under the commitment statute if the patient has impaired “judgment, behavior, capacity to recognize reality, or ability to address basic life necessities.”

• Is a mental health facility the proper placement for a person with a medical condition with psychiatric features? Such patients might be admitted to acute care psychiatric hospitals when

(1) They are medically stable enough to be managed on a psychiatric unit rather than a medical unit

(2) They have emotional or behavioral problems that need to be addressed

(3) A locked psychiatric unit is a safer treatment setting

• The primary treatment provided on a psychiatric unit often is medical (e.g. treatment of a urinary tract infection that is contributing to agitation in an individual with dementia), but such "medical care” remains part of an overall psychiatric treatment plan. The decision about whether care should be delivered on a medical or psychiatric unit is a medical triage decision rather than a simple categorical distinction.




Substantial Likelihood of Serious Physical Harm

Substantial Likelihood of Serious Physical Harm

• The term “danger” was considered excessively vague:– No indication of how likely the anticipated harm must be

– No indication of how serious that harm must be in order for commitment to be justified.

• Now, the harm must have a “substantial likelihood” of occurring – Not just any likelihood, no matter how small

• The potential harm must be considered probable, not simply possible

– No specific percentage degree of risk or degree of injury is specified (to allow for individual application)

• E.g. harm doesn’t have to be “more likely than not.” A 20% risk of harm might be considered “substantial enough,” particularly if the severity of threatened harm is high (e.g. following a recent severe suicide attempt or violent assault)

• The severity of potential harm must be of a “serious physical” nature – Not just trivial injury (e.g. superficial scratches) or emotional harm

– However, the harm doesn’t have to be lethal, as in suicide or homicide

“In the near future” vs. “Imminent”

• Some clinical evaluators and legal decision-makers have interpreted “imminent” to mean that the feared harm was expected to occur “immediately” or “within 24 hours”

• This narrow interpretation of “imminent” has been a major target of criticism by clinicians and families of people with mental illness. Virginia’s statute also was found by the Commission to be among the most restrictive in the country. The Commission and General Assembly concluded that that this criterion was unduly and should be replaced with “in the near future.”

• The time frame of anticipated harm still isn’t indefinite. Harm believed likely to occur in the more distant future (weeks to months) still would not qualify for commitment.

• Exact specificity (e.g. “in the next 48 hours”) was deemed unworkable

“In the near future” vs. “Imminent”

• Mental health experts generally concede their inability to predict an individual’s dangerous behavior related to acute mental illness beyond a period of about a week. Given this, a reasonable interpretation of “near future” would involve a flexible time frame, generally speaking, of up to about one week, but this isn’t an absolute recommendation, and periods slightly longer than this are not precluded by the statutory language.

• • Requests for involuntary treatment typically arise when people with

serious mental illness are experiencing a significant decline or deterioration of functioning, and this downward spiral, as evidenced by recent behavior as well as by mental and emotional symptoms, raises serious concern about harm “in the near future” if the deterioration were to continue without therapeutic intervention.

“Recent Behavior” Requirement




“Recent Behavior” Requirement

• There was no language in previous statute indicating what constitutes an acceptable evidentiary basis for concluding that a person is “dangerous.”

• Revised statute specifies that a clinical judgment that someone presents a “substantial likelihood” of causing harm in the near future must be “evidenced by recent behavior causing, attempting, or threatening harm.”

• This requirement is designed to anchor the clinical risk assessment in the person’s “recent behavior” and thereby avoid unfettered speculation.

• “Recent” implies that harmful acts occurring long ago, while providing important information for risk assessment, don’t provide a sufficient evidentiary basis in themselves for civil commitment at the present time.

“Recent Behavior” Requirement• The terms “causing”, “attempting” and “threatening harm” imply that some

overt act or statement suggestive of a harmful act or threat must be documented

• HOWEVER, harm itself need not already have occurred in order for commitment to be justified - an attempt or threat of harm will suffice as evidence.

• The statute doesn’t require specific intent of harm (unlike in criminal law).

• The revised statute also does not require evidence that the individual has made a specific verbal threat against a particular identifiable individual; a generalized expression of intention or an inclination to cause serious harm to anyone would be sufficient.

• The phrase “recent behavior. . . threatening harm” indicates that one’s recent behavior itself can constitute a threat, particularly when taken in light of past behavior when ill. Any behavior that is “threatening” when seen in the context of the person’s symptoms provides an ample basis for the risk assessment even if it does not amount to a specific verbal threat.

“Other relevant information, if any”




“Other relevant information, if any”

• Not a substitute for the requirement to meet the primary criteria

• This phrase simply clarifies that “any relevant evidence” may be introduced and used by the decision-maker to support the finding that “there is a substantial likelihood that the person will cause serious physical harm…” as long as the finding is supported at least by “recent behavior causing, attempting of threatening harm.”

• The revised statute requires the magistrate, CSB evaluator and Independent Examiner to consider a wide array of other information in making his or her determination. In addition, the statute makes clear that the judge or special justice is also expected to consider all records, reports and relevant information admitted at the hearing.

• Examples: Violence during previous episodes of illness, having dropped out of treatment or stopped taking all medications, reappearance of clinical symptoms that in the past have been followed by violent acts

Second Set of Criteria




“Suffer Serious Harm”

• The previous statute did not specify what it meant for a person to be “unable to care for himself”

• The new criteria provide greater specificity regarding the circumstances under which a protective intervention would be justified

• The new language focuses on the outcome that this prong of the commitment standard seeks to avoid, i.e. “serious harm” to the individual

• Unlike the “danger to self or others” criterion, this provision requires evidence of “serious harm” but not necessarily serious physical harm

– Obviously, a risk of serious physical injury or death qualifies

– However, the omission of the requirement that the harm be physical was intentional, such that harms such as financial harm from a manic state could be considered

“Suffer Serious Harm”If attributable to mental illness, and if likely to occur in the near future, the following predicted harms might amount to “serious harms”:

•Serious financial harm that could result from a person spending his or her life savings while in a manic state•Serious medical harm due to failure to seek medical care or take prescribed medications.

– Failure to take insulin in an individual with longstanding history of diabetes with a past history of life-threatening diabetic ketoacidosis following a previous discontinuation of insulin, likely would qualify, as would the failure to take antibiotics in the context of a current severe pneumonia

– Failure to take antihypertensive medications, which might result in a heart attack or stroke at some point in the next decade, likely would not qualify

•Eviction from lodging due to the person’s grossly inappropriate behavior – Again, must be due to the mental illness

•Loss of custody of one’s children because of grossly inappropriate or dangerous parenting•Loss of employment due to grossly inappropriate workplace behavior•Engaging in illness-related criminal behavior that would be highly likely to lead to arrest and incarceration if the police were to decide when confronted with such behavior to initiate the criminal process

Lack of Capacity




Lack of Capacity• Most cases don’t involve a total lack of capacity• Therefore, individual judgment will have to be applied as to when a

substantial impairment of judgment, cognition or emotional control symptomatic of mental illness amounts to a “lack of capacity to protect oneself” – Obviously, a person who is unconscious or catatonic lacks the capacity to

protect himself

• More commonly, though, the person is conscious and mobile, in which case the focus should be on deficits in those capacities that relate to activities of daily living that, if not carried out, could lead to “serious harm,” such as the capacity for self-protection (whether due to symptoms of an acute illness, such as mania, or due to a marked decline of capacities in a person with a chronic condition such as dementia).

• An additional focus would include whether the individual recently has exposed himself to serious harm and on whether interventions designed to prevent harm have been attempted and have failed.

Documents

Understanding and Applying Virginia’s New Statutory Civil Commitment Criteria Bruce J. Cohen, M.D. University of Virginia Dept of Psychiatry and Neurobehavioral