history | pdf
038792253
HOUSE BILL NO. 2445
Offered January 8, 2003
Prefiled January 8, 2003
A BILL to amend and reenact 2.2-3703, 37.1-70.1 through 37.1-70.7, as they shall become effective, 37.1-70.9 through 37.1-70.16, as they shall become effective, 37.1-84.1, 37.1-103, 37.1-104, and 37.1-104.1 of the Code of Virginia, relating to sexually violent predators.
----------

Patrons-- Griffith, Albo, Athey, Black, Cline, Cosgrove, Drake, Landes, Louderback, McDougle, O'Bannon, Suit, Watts and Welch
----------
Referred to Committee for Courts of Justice
----------

Be it enacted by the General Assembly of Virginia:

1. That 2.2-3703, 37.1-70.1 through 37.1-70.7, as they shall become effective, 37.1-70.9 through 37.1-70.16, as they shall become effective, 37.1-84.1, 37.1-103, 37.1-104, and 37.1-104.1 of the Code of Virginia are amended and reenacted as follows:

2.2-3703. Public bodies and records to which chapter inapplicable; voter registration and election records.

A. The provisions of this chapter shall not apply to:

1. The Virginia Parole Board, except that (i) information from the Virginia Parole Board providing the number of inmates considered by such Board for discretionary parole, the number of inmates granted or denied parole, and the number of parolees returned to the custody of the Department of Corrections solely as a result of a determination by such Board of a violation of parole shall be open to inspection and available for release, on a monthly basis, as provided by 2.2-3704 and (ii) all records concerning the finances of the Virginia Parole Board shall be public records and subject to the provisions of this chapter. The information required by clause (i) shall be furnished by offense, sex, race, age of the inmate, and the locality in which the conviction was obtained, upon the request of the party seeking the information;

2. Petit juries and grand juries;

3. Family assessment and planning teams established pursuant to 2.2-5207; and

4. The Virginia State Crime Commission.

5. The Commitment Review Committee and any documents, evaluations, assessments and proceedings involving the commitment of sexually violent predators under Article 1.1 ( 37.1-70.1 et seq.) of Chapter 2 of Title 37.1.

B. Public access to voter registration and election records shall be governed by the provisions of Title 24.2 and this chapter. The provisions of Title 24.2 shall be controlling in the event of any conflict.

37.1-70.1. (Effective January 1, 2004) Definitions.

The following words and phrases when used in this article shall have the following meanings, unless the context clearly indicates otherwise:

"Commissioner" means the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services.

"Defendant" means any person charged with a sexually violent offense who is deemed an unrestorably incompetent defendant pursuant to 19.2-169.3 and is referred to the Attorney General attorney for the Commonwealth for commitment review pursuant to 37.1-70.6.

"Director" means the Director of the Department of Corrections.

"Mental abnormality" or "personality disorder" means a congenital or acquired condition that affects a person's emotional or volitional capacity and renders the person so likely to commit sexually violent offenses that he constitutes a menace to the health and safety of others.

"Sexually violent offense" means an instant violation of 18.2-61, 18.2-67.1, or 18.2-67.2 or subdivision A 1 of 18.2-67.3.

"Sexually violent predator" means any person who (i) has been convicted of a sexually violent offense or has been charged with a sexually violent offense and is unrestorably incompetent to stand trial pursuant to 19.2-169.3 and; (ii) suffers from a mental abnormality or personality disorder.; and (iii) who is more likely than not, because of emotional, and volitional or cognitive difficulties, or both volitional and cognitive difficulties, to find it difficult, if not impossible, to control his predatory behavior.

37.1-70.2. (Effective January 1, 2004) Rights of prisoners and defendants.

In hearings and trials held pursuant to this article, prisoners and defendants shall have the following rights:

1. To receive adequate notice of the proceeding.

2. To be represented by counsel.

3. To remain silent or to testify.

4. To be present during the hearing or trial.

5. To present evidence and to cross-examine witnesses.

6. To view and copy all petitions and reports in the court file.

In no event shall a prisoner or defendant be permitted, as a part of any proceedings under this article, to raise challenges to the fact or validity of his prior criminal sentences or institutional convictions.

In the event the prisoner or defendant chooses to remain silent or refuses to cooperate with the mental health examination required under 37.1-70.5, the court may admit evidence of such refusal, or in the discretion of the court, bar the prisoner or defendant from introducing his own expert psychiatric or psychological evidence.

37.1-70.3. (Effective January 1, 2004) Commitment Review Committee; membership.

A. The Director of the Department of Corrections shall establish a Commitment Review Committee (CRC) to screen, evaluate, and make recommendations regarding prisoners in the custody of the Department of Corrections for the purposes of this article. The CRC shall be under the supervision of the Department of Corrections. Members of the CRC and any licensed psychiatrists or licensed clinical psychologists providing examinations under subsection B of 37.1-70.5 shall be immune from personal liability while acting within the scope of their duties except for intentional misconduct.

B. The CRC shall consist of seven 7 members to be appointed as follows: (i) three 3 full-time employees of the Department of Corrections, appointed by the Director of the Department of Corrections; (ii) three 3 full-time employees of the Department of Mental Health, Mental Retardation and Substance Abuse Services, appointed by the Commissioner, at least one 1 of whom shall be a psychiatrist or psychologist licensed to practice in the Commonwealth of Virginia who is skilled in the diagnosis of mental abnormalities and personality disorders associated with violent sex offenders; and (iii) one 1 assistant or deputy attorney general, appointed by the Attorney General. Initial appointments by the Director and the Commissioner shall be for terms as follows: one 1 member each for two 2 years, one 1 member each for three 3 years, and one 1 member each for four 4 years. The initial appointment by the Attorney General shall be for a term of four 4 years. Thereafter, all appointments to the CRC shall be for terms of four 4 years, and vacancies shall be filled for the unexpired terms. Five members shall constitute a quorum.

C. The CRC shall meet at least monthly and at other times as it deems appropriate. The CRC shall elect a chairman from its membership to preside during meetings.

37.1-70.4. (Effective January 1, 2004) Treatment plans; database of prisoners convicted of sexually violent offenses; maintained by Department of Corrections; notice of pending release to CRC.

A. The Director shall establish and maintain a treatment program for prisoners convicted pursuant to Article 7 ( 18.2-61 et seq.) of Chapter 4 of Title 18.2 and committed to the custody of the Department of Corrections. Such program shall include a clinical assessment of all such prisoners upon receipt into the custody of the Department of Corrections and the development of appropriate treatment plans if indicated. This program shall be operated under the direction of a licensed clinical psychiatrist or licensed clinical psychologist who is experienced in the diagnosis and treatment of mental abnormalities and disorders associated with criminal sexual offenders.

B. The Director of the Department of Corrections shall establish and maintain a database of prisoners in his custody who are incarcerated for sexually violent offenses. The database shall include the following information regarding each prisoner: (i) the prisoner's criminal record, (ii) the prisoner's sentences and scheduled date of release, and (iii) the appropriate locality for a commitment petition.

C. Each month, the Director shall review the database of prisoners incarcerated for sexually violent offenses and identify all such prisoners who are scheduled for release from prison no earlier than ten 10 months, but no later than eight months from the date of such review. Upon the identification of such prisoners, the Director shall forward their name, their scheduled date of release, and a copy of their file to the CRC for assessment.

37.1-70.5. (Effective January 1, 2004) CRC assessment of prisoners eligible for commitment as sexually violent predators; mental health examination; recommendation to the attorney for the Commonwealth.

A. Within forty-five90 days of receiving notice from the Director pursuant to 37.1-70.4 regarding a prisoner who is incarcerated for a sexually violent offense, the CRC shall (i) complete its assessment of such prisoner for possible commitment pursuant to subsection B and (ii) forward its recommendation regarding the prisoner, in written form, to the Attorney General attorney for the Commonwealth in the jurisdiction where the prisoner was convicted of the sexually violent offense pursuant to subsection C.

B. CRC assessments of prisoners incarcerated for sexually violent offenses shall include a mental health examination, including a personal interview, of the prisoner by a licensed psychiatrist or a licensed clinical psychologist, designated by the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services, who is skilled in the diagnosis and treatment of mental abnormalities and disorders associated with violent sex offenders, and who is not a member of the CRC. The licensed psychiatrist or licensed clinical psychologist shall determine whether the prisoner is a sexually violent predator as defined in 37.1-70.1 and forward the results of this evaluation and any supporting documents to the CRC for its review. The CRC assessment shall also include a review of (i) the prisoner's institutional history and treatment record, if any; (ii) the prisoner's criminal background; and (iii) any other factor which is relevant to the determination of whether such prisoner is a sexually violent predator.

C. Following the examination and review of a prisoner conducted pursuant to subsection B, the CRC shall recommend that such prisoner (i) be committed as a sexually violent predator pursuant to this article; (ii) not be committed, but be placed in a conditional release program as a less restrictive alternative; or (iii) not be committed because he does not meet the definition of a sexually violent predator. To assist the Attorney General attorney for the Commonwealth in his review, the Department of Corrections, the CRC, and the psychiatrist or psychologist who conducts the mental health examination pursuant to this section shall provide the Attorney General attorney for the Commonwealth with all evaluation reports, prisoner records, criminal records, medical files, and any other documentation relevant to determining whether a prisoner is a sexually violent predator.

D. Pursuant to clause (ii) of subsection C, the CRC shall recommend that a prisoner enter a conditional release program if it finds that (i) such prisoner does not need inpatient hospitalization, but needs outpatient treatment and monitoring to prevent his condition from deteriorating to a degree that he would need inpatient hospitalization; (ii) appropriate outpatient supervision and treatment are reasonably available; (iii) there is significant reason to believe that the prisoner, if conditionally released, would comply with the conditions specified; and (iv) conditional release will not present an undue risk to public safety.

37.1-70.6. (Effective January 1, 2004) Commonwealth's Attorney review of prisoners incarcerated for sexually violent offenses; unrestorably incompetent defendants charged with sexually violent offenses; petition for commitment; notice to Department of Corrections or referring court regarding disposition of review.

A. Upon receipt of a recommendation by the CRC regarding a prisoner incarcerated for a sexually violent offense or upon receipt of a court order referring an unrestorably incompetent defendant for review pursuant to 19.2-169.3, the Attorney General attorney for the Commonwealth in the jurisdiction where the prisoner was convicted or the defendant was found unrestorably incompetent shall have forty-five90 days to conduct a review of such prisoner or defendant and (i) file a petition for the civil commitment of such prisoner or defendant as a sexually violent predator and stating sufficient facts to support such allegation or (ii) notify the Director and Commissioner in the case of a prisoner, or the referring court and the Commissioner in the case of an unrestorably incompetent defendant, that he will not file a petition for commitment. Petitions for commitment shall be filed in the circuit court wherein the prisoner was last convicted of a sexually violent offense or wherein the defendant was deemed unrestorably incompetent and referred for commitment review pursuant to 19.2-169.3.

B. In determining whether to file a petition to civilly commit a prisoner under this article, the Attorney General attorney for the Commonwealth shall review (i) the CRC recommendation and its reasoning; (ii) the results of the mental health examination conducted pursuant to 37.1-70.5; (iii) the prisoner's institutional history and treatment record, if any; (iv) the prisoner's criminal offense history; and (v) any other factor relevant to the determination of whether the prisoner should be civilly committed. Although the Attorney General attorney for the Commonwealth shall consider the CRC recommendation as part of the review, the CRC recommendation is not binding upon the Attorney General attorney for the Commonwealth.

C. In determining whether to file a petition to civilly commit a defendant under this article, the Attorney General attorney for the Commonwealth shall review (i) the defendant's warrant or indictment, (ii) the competency report completed pursuant to 19.2-169.1, (iii) the report and recommendations prepared by the director of the defendant's treating facility pursuant to 19.2-169.3, (iv) the defendant's criminal offense history, (v) information about the alleged crime, and (vi) any other factor relevant to the determination of whether the defendant should be civilly committed.

37.1-70.7. (Effective January 1, 2004) Probable cause hearing.

A. Upon the filing of a petition alleging that a person is a sexually violent predator, the circuit court shall schedule a hearing within thirty 60 days to determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. A copy of the petition shall be personally served on the person named in the petition, his attorney, and his guardian or committee, if applicable. In addition, a written explanation of the sexually violent predator involuntary commitment process and the statutory protections associated with the process shall be given to the person at the time the petition is served.

B. Prior to any hearing under this section, the judge shall ascertain if the person whose commitment is sought is represented by counsel, and if he is not represented by counsel, the judge shall appoint an attorney-at-law to represent him. However, if such person requests an opportunity to employ counsel, the court shall give him a reasonable opportunity to employ counsel at his own expense.

C. At the probable cause hearing, the judge shall (i) verify the person's identity and (ii) determine whether probable cause exists to believe that the person is a sexually violent predator. In the case of a prisoner in the custody of the Department of Corrections, if the judge finds that there is not probable cause to believe that the person is a sexually violent predator, the judge shall dismiss the petition and the person shall remain in the custody of the Department of Corrections until his scheduled date of release from prison. In the case of a defendant, if the judge finds that there is not probable cause to believe the defendant is a sexually violent predator, the judge shall dismiss the petition and order that the defendant be released, committed pursuant to 37.1-67.3, or certified pursuant to 37.1-65.1. If the judge finds that probable cause exists to believe that the prisoner or defendant is a sexually violent predator, the judge shall order that the prisoner remain in the secure custody of the Department of Corrections or the defendant remain in the secure custody of the Department of Mental Health, Mental Retardation and Substance Abuse Services until a trial is conducted to determine whether he should be committed.

37.1-70.9. (Effective January 1, 2004) Trial; right to trial by jury; standard of proof.

A. Within forty-five90 days after the completion of the probable cause hearing held pursuant to 37.1-70.7, the court shall conduct a trial to determine whether the person who is the subject of the petition is a sexually violent predator.

B. The Attorney General attorney for the Commonwealth or the person who is the subject of the petition shall have the right to a trial by jury. Seven persons from a panel of thirteen 13 shall constitute a jury in such cases. If a jury determines a person to be a violent sexual predator, a unanimous verdict shall be required. If no demand is made by either party for a trial by jury, the trial shall be before the court.

C. The court or jury shall determine whether, beyond a reasonable doubt, the person who is the subject of the petition is a sexually violent predator. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court shall, in the case of a prisoner, direct that he be returned to the custody of the Department of Corrections until his scheduled date of release, or that the prisoner be unconditionally released if his scheduled date of release has passed. In the case of a defendant, if the court or jury is not satisfied beyond a reasonable doubt that the defendant is a sexually violent predator, the court shall order that the defendant be released, committed pursuant to 37.1-67.3, or certified pursuant to 37.1-65.1.

If the court or jury finds the person to be a sexually violent predator, the court shall then determine the nature of treatment the person is to receive. If the court finds, in its determination of treatment needs, that alternatives to involuntary confinement and treatment have been investigated and deemed unsuitable and there is no less restrictive alternative to institutional confinement and treatment, the judge shall by written order and specific findings so certify and order that the person be committed to the custody of the Department of Mental Health, Mental Retardation and Substance Abuse Services for appropriate treatment and confinement in a secure facility designated by the Commissioner. Persons committed pursuant to this article are subject to the provisions of 19.2-174.1 and 37.1-134.21.

However, if the court finds, in determining the treatment needs of a person found to be a sexually violent predator, that less restrictive alternatives to institutional confinement and treatment have been investigated and are deemed suitable, and if the judge finds specifically that the person meets the criteria for conditional release set forth in 37.1-70.13, the judge shall order outpatient treatment, day treatment in a hospital, night treatment in a hospital, outpatient involuntary treatment with anti-psychotic medication pursuant to 37.1-134.21, or such other appropriate course of treatment as may be necessary to meet the needs of the individual. The community services board which serves the political subdivision in which the person resides shall recommend a specific course of treatment and programs for provision of such treatment. The community services board shall monitor the person's compliance with such treatment as may be ordered by the court under this section unless the person is on parole or probation, in which case the parole or probation officer shall monitor the person's compliance, and the person's failure to comply with involuntary outpatient treatment as ordered by the court may be admitted into evidence in subsequent hearings held pursuant to the provisions of this article. Upon failure of the person to adhere to the terms of the outpatient treatment, the judge may revoke the same and, upon notice to the person undergoing outpatient treatment and after a hearing, order the person committed as a sexually violent predator for treatment at a hospital.

In the event of a mistrial, the court shall direct that the prisoner remain in the secure custody of the Department of Corrections or the defendant remain in the secure custody of the Department of Mental Health, Mental Retardation and Substance Abuse Services until another trial is conducted. Any subsequent trial following a mistrial shall be held within forty-five90 days of the previous trial.

All proceedings conducted hereunder are civil proceedings. However, no discovery other than that provided in 37.1-70.2 shall be allowed without prior leave of court, which may deny or limit discovery in any such proceeding. Under no circumstances shall the prisoner or defendant be entitled to receive a copy of the Victim Impact Statement or the presentence investigation report.

37.1-70.10. (Effective January 1, 2004) Placement of committed persons.

Any person committed pursuant to this article shall be placed in the custody of the Department of Mental Health, Mental Retardation and Substance Abuse Services for control, care and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person will not present an undue risk to public safety. Such control, care and treatment shall be provided at a facility operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services and located inside the secure perimeter of a Department of Corrections' facility. At all times, persons committed for control, care and treatment by the Department of Mental Health, Mental Retardation and Substance Abuse Services pursuant to this article shall be kept in a secure facility and such persons shall be segregated by sight and sound at all times from prisoners in the custody of the Director. The Commissioner may make treatment and management decisions regarding committed persons in his custody without obtaining prior approval of or review by the committing court.

Alternatively, the Department may house and provide treatment for persons involuntarily committed under the provisions of 37.1-70.1 through 37.1-70.19 at a facility operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services with appropriate security provided by the Department of Corrections. As a further alternative, the Department may contract with private or local entities, within or without the Commonwealth, or with other states that comply with the provisions of this article, to house and provide treatment to persons involuntarily committed under the provisions of Article 1.1 ( 37.1-70.1 et seq.) of Chapter 2 of this title.

37.1-70.11. (Effective January 1, 2004) Review of continuation of confinement hearing; procedure and reports; disposition.

A. The committing court shall conduct a hearing twelve 12 months after the date of commitment to assess each committed person's need for inpatient hospitalization. A hearing for assessment shall be conducted at yearly intervals for five 5 years and at biennial intervals thereafter. The court shall schedule the matter for hearing as soon as possible after it becomes due, giving the matter priority over all pending matters before the court.

B. Prior to the hearing, the Commissioner shall provide to the court a report reevaluating the committed person's condition and recommending treatment, to be prepared by a licensed psychiatrist or a licensed clinical psychologist who shall be skilled in the diagnosis and treatment of mental abnormalities and personality disorders associated with violent sex offenders, and qualified by training and experience to perform forensic evaluations. If the Commissioner's report recommends release or the committed person requests release, the committed person's condition and need for inpatient hospitalization shall be evaluated by a second person with such credentials who is not currently treating the committed person. Any professional person who conducts a second evaluation of a committed person shall submit a report of his findings to the court and the Commissioner. A copy of any report submitted pursuant to this subsection shall be sent to the Attorney General attorney for the Commonwealth.

C. The burden of proof at the hearing shall be upon the Commonwealth to prove to the court beyond a reasonable doubt that the committed person remains a sexually violent predator.

D. If the court finds, based upon the report and other evidence provided at the hearing, that the committed person's condition has so changed that he is no longer a sexually violent predator, the court shall (i) release the committed person from confinement if he does not need inpatient hospitalization and does not meet the criteria for conditional release set forth in 37.1-70.13, provided the court has approved a discharge plan prepared jointly by the hospital staff and the appropriate community services board or (ii) place the committed person on conditional release if he meets the criteria for conditional release, and the court has approved a conditional release plan prepared jointly by the hospital staff and the appropriate community services board. However, if the court finds that the committed person remains a sexually violent predator, it shall order that he remain in the custody of the Commissioner for secure inpatient hospitalization and treatment.

37.1-70.12. (Effective January 1, 2004) Petition for release; hearing; procedures.

A. The Commissioner may petition the committing court for conditional or unconditional release of the committed person at any time he believes the committed person's condition has so changed that he is no longer a sexually violent predator in need of treatment and secure confinement. The petition shall be accompanied by a report of clinical findings supporting the petition and by a conditional release or discharge plan, as applicable, prepared jointly by the hospital and the appropriate community services board. The committed person may petition the committing court for release only once in each year in which no annual judicial review is required pursuant to 37.1-70.11. The party petitioning for release shall transmit a copy of the petition to the Attorney General attorney for the Commonwealth and to the Commissioner.

B. Upon the submission of a petition pursuant to this section, the committing court shall conduct the proceedings according to the procedures set forth in 37.1-70.11.

37.1-70.13. (Effective January 1, 2004) Conditional release; criteria; conditions; reports.

At any time the court considers the committed person's need for inpatient hospitalization pursuant to this article, it shall place the committed person on conditional release if it finds that (i) based on consideration of the factors which the court must consider in its commitment decision, he does not need inpatient hospitalization but needs outpatient treatment or monitoring to prevent his condition from deteriorating to a degree that he would need inpatient hospitalization; (ii) appropriate outpatient supervision and treatment are reasonably available; (iii) there is significant reason to believe that the committed person, if conditionally released, would comply with the conditions specified; and (iv) conditional release will not present an undue risk to public safety. The court shall subject a conditionally released committed person to such orders and conditions it deems will best meet the committed person's need for treatment and supervision and best serve the interests of justice and society.

The community services board serving the locality in which the committed person will reside upon release, or if the person is on parole or probation, the person's parole or probation officer, shall implement the court's conditional release orders and shall submit written reports to the court on the committed person's progress and adjustment in the community no less frequently than every six 6 months. The community services board or, if the person is on parole or probation, the person's parole or probation officer, shall send a copy of each written report submitted to the court and copies of all correspondence with the court pursuant to this section, to the Attorney General attorney for the Commonwealth and to the Commissioner.

37.1-70.14. (Effective January 1, 2004) Emergency custody of conditionally released person; revocation of conditional release.

A judicial officer may issue an emergency custody order, upon the sworn petition of any responsible person, or upon his own motion, based upon probable cause to believe that a person on conditional release within his judicial district has violated the conditions of his release and is no longer a proper subject for conditional release. The emergency custody order shall require a law-enforcement officer take the person into custody immediately and transport him to a convenient location specified in the order where a person designated by the community services board who is skilled in the diagnosis and treatment of mental abnormalities and personality disorders shall, as soon as practicable, evaluate him for the purpose of determining the nature and degree of violation of the conditions of his release.

The person on conditional release shall remain in custody until a hearing is held in the circuit court on the motion or petition to determine if he should be returned to the custody of the Commissioner. Such hearing shall be given priority on the court's docket. If upon hearing the evidence, the court finds that the person on conditional release has violated the conditions of his release and that the violation of conditions was sufficient to render him no longer suitable for conditional release, the court shall revoke his conditional release and order him returned to the custody of the Commissioner for inpatient treatment. The person may petition the original committing court for re-release pursuant to the conditions set forth in 37.1-70.12 no sooner than six 6 months from his return to custody. The party petitioning for re-release shall transmit a copy of the petition to the Attorney General attorney for the Commonwealth and to the Commissioner.

37.1-70.15. (Effective January 1, 2004) Modification or removal of conditions; notice; objections; review.

A. The committing court may modify conditions of release or remove conditions placed on release pursuant to 37.1-70.13, upon petition of the supervising community services board, the supervising parole or probation officer, the Attorney General attorney for the Commonwealth, or the person on conditional release, or upon its own motion based on reports of the supervising community services board or the supervising parole or probation officer. However, the person on conditional release may petition only annually commencing six 6 months after the conditional release order is issued. Upon petition, the court shall require the supervising community services board, or, if the person is on parole or probation, the person's parole or probation officer, to provide a report on the person's progress while on conditional release. The party petitioning for release shall transmit a copy of the petition to the Attorney General attorney for the Commonwealth and to the Commissioner.

B. As it deems appropriate based on the community services board's or parole or probation officer's report and any other evidence provided to it, the court may issue a proposed order for modification or removal of conditions. The court shall provide notice of the order, and their right to object to it within ten 20 days of its issuance, to the person, the supervising community services board or parole or probation officer, and the Attorney General attorney for the Commonwealth. The proposed order shall become final if no objection is filed within ten 20 days of its issuance. If an objection is so filed, the court shall conduct a hearing at which the person on conditional release, the Attorney General attorney for the Commonwealth, and the supervising community services board or the parole or probation officer, have an opportunity to present evidence challenging the proposed order. At the conclusion of the hearing, the court shall issue an order specifying conditions of release or removing existing conditions of release.

37.1-70.16. (Effective January 1, 2004) Representation of Commonwealth and person subject to commitment; nature of proceedings.

The Attorney General attorney for the Commonwealth shall represent the Commonwealth in all proceedings held pursuant to this article, except in emergency commitment hearings held pursuant to 37.1-70.14. The Attorney General attorney for the Commonwealth shall receive prior written notice of all proceedings held under this article in which he is to represent the Commonwealth.

The court shall appoint counsel for the person subject to commitment or conditional release pursuant to subsection B of 37.1-70.7 unless such person waives his right to counsel. The court shall consider appointment of the person who represented the person in previous proceedings.

All proceedings held under this article shall be civil proceedings.

37.1-84.1. Rights of patients and residents.

A. Each person who is a patient, resident, or consumer in a hospital, other facility, or program operated, funded, or licensed by the Department of Mental Health, Mental Retardation and Substance Abuse Services, excluding those operated by the Department of Corrections and the sexually violent predator program established under Article 1.1 ( 37.1-70.1 et seq.) of Chapter 2 of this title, shall be assured his legal rights and care consistent with basic human dignity insofar as it is within the reasonable capabilities and limitations of the Department, funded program, or licensee and is consistent with sound therapeutic treatment. Each person admitted to a hospital, other facility, or program operated, funded, or licensed by the Department shall:

1. Retain his legal rights as provided by state and federal law;

2. Receive prompt evaluation and treatment or training about which he is informed insofar as he is capable of understanding;

3. Be treated with dignity as a human being and be free from abuse or neglect;

4. Not be the subject of experimental or investigational research without his prior written and informed consent or that of his legally authorized representative. No employee of the Department or a community services board, behavioral health authority, or local government department with a policy-advisory community services board; a community services board, behavioral health authority, or local government with a policy-advisory community services board contractor; or any other public or private program or facility licensed or funded by the Department shall serve as a legally authorized representative for a consumer being treated in any Department, community services board, behavioral health authority, local government department with a policy-advisory community services board or other licensed or funded public or private program or facility, unless the employee is a relative or legal guardian of the consumer;

5. Be afforded an opportunity to have access to consultation with a private physician at his own expense and, in the case of hazardous treatment or irreversible surgical procedures, have, upon request, an impartial review prior to implementation, except in case of emergency procedures required for the preservation of his health;

6. Be treated under the least restrictive conditions consistent with his condition and not be subjected to unnecessary physical restraint and isolation;

7. Be allowed to send and receive sealed letter mail;

8. Have access to his medical and mental records and be assured of their confidentiality but, notwithstanding other provisions of law, such right shall be limited to access consistent with his condition and sound therapeutic treatment;

9. Have the right to an impartial review of violations of the rights assured under this section and the right of access to legal counsel; and

10. Be afforded appropriate opportunities, consistent with the person's capabilities and capacity, to participate in the development and implementation of his individualized services plan.

The State Mental Health, Mental Retardation and Substance Abuse Services Board shall promulgate regulations relative to the implementation of the above after due notice and public hearing as provided for in the Administrative Process Act ( 2.2-4000 et seq.).

The Board shall also promulgate regulations delineating the rights of patients, residents, and consumers with respect to nutritionally adequate diet, safe and sanitary housing, participation in nontherapeutic labor, attendance or nonattendance at religious services, participation in treatment decision-making, including due process procedures to be followed when a patient, resident, or consumer may be unable to make an informed decision, use of telephones, suitable clothing, and possession of money and valuables and related matters. Licensure pursuant to Chapter 8 ( 37.1-179 et seq.) of this title shall be contingent upon substantial compliance with human rights regulations as determined by periodic human rights reviews performed by the Department. Human rights reviews will be conducted as part of the Department's licensure reviews or, at the Department's discretion, whenever human rights issues arise. Such latter regulations shall be applicable to all hospitals, other facilities, and programs operated, funded, or licensed by the Department of Mental Health, Mental Retardation and Substance Abuse Services but such hospitals, facilities, or programs may be classified as to patient, resident, or consumer population, size, type of services, or other reasonable classification.

B. The Board shall promulgate regulations requiring public and private facilities and programs licensed or funded by the Department to provide nonprivileged information and statistical data to the Department related to (i) the results of investigations of abuse or neglect, (ii) deaths and serious injuries, (iii) instances of seclusion and restraint, including the duration, type and rationale for use per consumer, and (iv) findings by state or local human rights committees or the Office of Human Rights within the Department of human rights violations, abuse or neglect. The Board's regulations shall address the procedures for collecting, compiling, encrypting and releasing the data. Such information and statistical data shall be made available to the public in a format from which all provider, patient, resident and consumer-identifying information has been removed. The Board's regulations shall specifically exclude all proceedings, minutes, records, and reports of any committee or nonprofit entity providing a centralized credentialing service which are identified as privileged pursuant to 8.01-581.17.

37.1-103. Habeas corpus as means.

Any person held in custody as mentally ill may by petition for a writ of habeas corpus have the question of the legality of his detention determined by a court of competent jurisdiction. Upon the petition, after notice to the authorities of the hospital or other institution in which such person is confined, the court shall in some courtroom of such county or city, or in some other convenient public place in such county or city determine whether such person is mentally ill and whether he should be detained. Any proceeding to challenge the continued confinement of a person held in custody under Article 1.1 ( 37.1-70.1 et seq.) of Chapter 2 of this title shall be conducted in accordance with 37.1-70.11.

37.1-104. Procedure when person confined in hospital or other institution.

If the person mentioned in 37.1-103 is held in custody and actually confined in any hospital or other institution, he may file his petition in the circuit court of the county or the city in which such hospital or other institution is located or in the circuit court of the county or the city adjoining the county or city in which such hospital or other institution is located. Any proceeding to challenge the continued confinement of any person held in custody under Article 1.1 ( 37.1-70.1 et seq.) of Chapter 2 of this title shall be conducted in the circuit court wherein the person was last convicted of a sexually violent offense or wherein the defendant was deemed unrestorably incompetent and referred for commitment pursuant to 19.2-169.3.

37.1-104.1. Procedure when person not confined in hospital or other institution.

In all cases, other than those provided for in 37.1-104, the person may file his petition in the circuit court of the county or the city in which he resides, or in which he was certified to be mentally ill, or in which an order was entered authorizing his retention for continued hospitalization, pursuant to Chapter 2, Article 1 ( 37.1-63 et seq.) of this title. Any proceeding to challenge the continued confinement of any person held in custody under Article 1.1 ( 37.1-70.1 et seq.) of Chapter 2 of this title shall be conducted in the circuit court wherein the person was last convicted of a sexually violent offense or wherein the defendant was deemed unrestorably incompetent and referred for commitment pursuant to 19.2-169.3.

2. That an emergency exists and this act is in force from its passage, notwithstanding the provisions of Items 49 C and 331 C1 of Chapter 899 of the Acts of Assembly of 2002.

3. That, notwithstanding the provisions of Items 49 C and 331 C1 of Chapter 899 of the Acts of Assembly of 2002, the amendments to 19.2-169.3 and 19.2-174.1 in Chapters 946 and 985 of the 1999 Acts of Assembly shall become effective on the effective date of this act.


Legislative Information System