Post on 29-Apr-2019
ECOS & TDOS
THE
MAGISTRATES’
ROLE
THE MAGISTRATE SYSTEM BREAKDOWN
8 Regions
• Region IV
31 Districts
• Districts 16, 20 and 26 in Region IV
Points of Contact
Magistrate Regional Supervisor – Cheryl Thompson
District 16 – Chief Magistrate Avnel Coates
District 20 – Chief Magistrate Larry Black
District 26 – Chief Magistrate Monica Martin
MAGISTRATES HAVE
REGIONAL AUTHORITY
Magistrates only have jurisdiction to issue for someone physically
located or last know to be physically located in their region
Emergency Custody Order
(“ECO”) - Initiation
Governed by Virginia Code § 37.2-808
(adults) & §16.1-340 (juveniles)
Magistrates have unique authority to issue
a “paper” ECO
Voluntary
The consumer goes for an evaluation on
their own
Officer Initiated ECO
OFFICER INITATED ECOS
Law enforcement has authority to take a
person into custody without petitioning the
magistrate for an ECO • “A law-enforcement officer who, based upon his observation or the
reliable reports of others, has probable cause to believe that a
person meets the criteria for emergency custody as stated in this
section may take that person into custody and transport that
person to an appropriate location to assess the need for
hospitalization or treatment without prior authorization.” - §37.2-
808(G)
ECO – The Petition
Scenario: a mother comes into the office and says
that her son needs mental health treatment and
refuses to go to the hospital. How can we assist?
An ECO may be initiated by :
“upon a sworn petition”, or
Notarized
Sworn in front of the magistrate (video or in
person)
“Magistrate’s own motion”
ECO – The Petition
For Adults a sworn petition may be initiated: “upon the sworn petition of any responsible person,
treating physician”
For Minors a sworn petition may be initiated:
• Absolute Authority – “upon the sworn petition of the
minor's treating physician or parent” or
• Contingent Authority – “If parents are not available,
unable or unwilling, any responsible adult”
ECO CRITERIA - ADULTS
ECO
Mental Illness
Hospitalization or Treatment
Lack of Consent
Harm
ECO CRITERIA - MINORS
ECO
Mental Illness
Hospitalization or Treatment Harm
NO consent
criteria for
juveniles
ECO CRITERIA – MENTAL ILLNESS
Includes substance abuse and dementia Substance use has to affect the person’s daily life, work
and relationships
Diagnosed mental illness
Scenario – Under oath, Mother says “My son has been really sad lately. He and his wife recently separated.
He has been sleeping all day and when he is awake he is not interested in anything and just looks sad.
Only need evidence of mental illness
ECO CRITERIA – HARM FOR ADULTS
“…that there exists a substantial likelihood that, as a result of
mental illness, the person will, in the near future…” - §37.2-
808(A)
Active Harm “cause serious physical harm to himself or others”
Passive Harm
The person is unable to protect himself/herself from harm
i.e. delusion cause person to walk into traffic
The person is unable to provide for own basic human
needs
i.e. Hygiene and nutrition
ECO CRITERIA – HARM FOR MINORS
“evidenced by recent acts or threats…”
§16.1-340(A)
o Active Harm
o “presents a serious danger to himself or others to the
extent that severe or irremediable injury is likely to
result...”
o Passive Harm o “experiencing a serious deterioration of his ability to care for
himself in a developmentally age-appropriate manner, as
evidenced by delusionary thinking or by a significant
impairment of functioning in hydration, nutrition, self-
protection, or self-control”
ECO CRITERIA – HOSPITALIZATION OR
TREATMENT
Adults
“ is in need of hospitalization or treatment” -
§37.2-808(A)(ii)
Minors
“the minor is in need of compulsory treatment for
a mental illness and is reasonably likely to
benefit from the proposed treatment.” - §16.1-340
(A)(ii)
ECO CRITERIA – LACK OF CONSENT
Respondent refuses to consent to
treatment
Respondent unable to give valid consent
due to the mental illness
Consent requirement does not apply for
minors
EVIDENCE
Per § 37.2-808 and § 16.1-340, in addition to the
petition, the magistrate, may consider: 1. the recommendations of any treating or examining
physician or psychologist licensed in Virginia, if available,
2. any past actions of the person,
3. any past mental health treatment of the person,
4. any relevant hearsay evidence,
5. any medical records available,
6. any affidavits submitted, if the witness is unavailable and
it so states in the affidavit, and
7. any other information available that the magistrate
considers relevant to the determination of whether
probable cause exists to issue an emergency custody order.
Transport
After the Magistrate finds that the criteria has been met
for an ECO, who will transport the Respondent and where
to?
Subsections (B) and (D) of Virginia Code § § 37.2-808
&16.1-340
Typically, the Law Enforcement Agency where the
Respondent is located is ordered to provide
transportation
The respondent is taken to a “Convenient location to
be evaluated”
TIME LIMITS
8 hours • 8 hours to serve
• If unexecuted, ECO becomes void
• 8 hours to hold • “The period of custody shall not exceed eight hours from the time the law-enforcement officer…takes custody”
Magistrates cannot extend or issue successive ECOs
Temporary Detention Order
(“TDO”)
Governed by Virginia Code § 37.2-809 & §16.1-
340.1
Magistrates have unique authority
• Only Magistrates can issue a TDO
Initiated by :
• Sworn petition
• Magistrate’s own motion
TDO - EVALUATION
Required evaluation.
CSB must evaluate respondent in person or by video:
Exceptions:
(i) Examined within last 72 hours by CSB; or
(ii) “Hannibal Lector exception” – “Significant
physical, psychological, or medical risk to the
person or to other persons associated with
conducting such evaluation.” - § 37.2-809
(D)(iii)
The petitioner and evaluator do not have to
be the same person
TDO - TRANSPORTATION
§37.2-810
The Law Enforcement Agency for the jurisdiction
where the respondent resides to execute TDO
Exception 50 mile rule
• (1) If such boundaries are more than 50 miles apart…the magistrate selects primary LEA of the jurisdiction where the respondent is located
• (2) If such boundaries are 50 miles or less apart at their closest point, then Magistrate selects primary LEA of the jurisdiction where respondent resides
Another willing law enforcement agency can provide transport – arrangements made among law enforcement agencies
ALTERNATIVE TRANSPORTATION
PROVIDERS (“ATP”)
Magistrates have discretionary authority to
designate an ATP for ECOs and TDOs
The ATP must be:
Available
Willing to transport the respondent
Able to transport the respondent safely
Many considerations
Law enforcement still serves the order and
takes the respondent into custody.
TDO – TIME LIMITS
Law enforcement has 24 hours to execute TDO after it is issued, unless magistrate specifies a shorter time period in the TDO
Respondent can be held on the TDO for up to 72 hours
Once a TDO is executed the magistrate cannot issue a successive TDO or extend the TDO
CSB RECOMMENDS NO TDO
New requirements under § 37.2-809(L) & (M)
Magistrates have the authority to issue a TDO if CSB recommended no TDO. • The magistrate shall consider any information
provided by the person who initiated emergency custody and any recommendations of the treating or examining physician and the employee or designee of the community services board who conducted the evaluation and consider such information and recommendations... - § 37.2-809(L)
ADDITIONAL ECO/TDO CASES
• Inmates
• Local/Regional Jails – authority only for TDOs
• Jail must petition
• Conditionally released acquittees
• Concurrent authority
• Finding of NGRI and person has been released
from a mental institution
ADDITIONAL ECO/TDO CASES
Conditionally released sexually violent
predators
• Concurrent authority for an ECO, no authority
for a TDO
• A conditionally released sexually violent
predator is a person who:
• Has been determined in court under §37.2-908
to be a sexually violent predator and
• Has been released on conditions under §37.2-
912
MEDICAL ECO CRITERIA
Governed by Virginia Code § 37.2-1103
Magistrates have Unique authority
Based upon the opinion of a licensed physician
Respondent must be physically located in the
magistrate’s region
4 hours to execute, 4 hours in custody once executed
MEDICAL ECO CRITERIA
incapable of making an informed decision regarding
obtaining necessary treatment as a result of a physical
injury or illness, and
that the medical standard of care indicates that testing,
observation, and treatment are necessary to prevent
imminent and irreversible harm,
there is no legally authorized person available to give
consent to necessary treatment,
has refused transport to obtain such necessary
treatment,
has indicated an intention to resist such transport, and
is unlikely to become capable of making an informed
decision regarding obtaining necessary treatment within
the time required for such decision.
MEDICAL TDO
Governed by Virginia Code § 37.2-1104
Contingent Authority
• Courts must be unavailable
Initiated by the opinion of a licensed
physician
MEDICAL TDO: CRITERIA
Adult (no authority for juveniles)
Physical or mental condition
Imminence of death, disability, or emergency
medical condition that requires immediate
action to avoid harm, injury or death
Attempt to obtain consent
CONTACT INFORMATION
Magistrate Regional Supervisor Cheryl Thompson
Office: (540) 727-3230
Email: cathompson@vacourts.gov
Chief Magistrate Avnel Coates
Office: (434) 296-0024
Email: acoates@courts.state.va.us
Albemarle/Charlottesville Magistrates’ Office
(434) 977-0220
Orange County Magistrates’ Office
(540) 672-1087