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.
About the author:
About the author: Pete Earley is the bestselling author of such books as The Hot House and Crazy. When he is not spending time with his family, he tours the globe advocating for mental health reform.
