TITLE 40.1
Behavioral Healthcare, Developmental Disabilities and Hospitals

CHAPTER 40.1-5
Mental Health Law

SECTION 40.1-5-8


§ 40.1-5-8 Civil court certification.

(a) Petitions. A verified petition may be filed in the district court, or family court in the case of a person who has not reached his or her eighteenth (18th) birthday, for the certification to a facility of any person who is alleged to be in need of care and treatment in a facility, and whose continued unsupervised presence in the community would create a likelihood of serious harm by reason of mental disability. The petition may be filed by any person with whom the subject of the petition may reside; or at whose house he or she may be; or the father or mother, husband or wife, brother or sister, or the adult child of any such person; the nearest relative if none of the above are available; or his or her guardian; or the attorney general; or a local director of public welfare; or the director of the department of behavioral healthcare, developmental disabilities and hospitals; the director of the department of human services; or the director of the department of corrections; the director of the department of health; the warden of the adult correctional institutions; the superintendent of the boys training school for youth, or his or her designated agent; or the director of any facility, or his or her designated agent, whether or not the person shall have been admitted and is a patient at the time of the petition. A petition under this section shall be filed only after the petitioner has investigated what alternatives to certification are available and determined why the alternatives are not deemed suitable.

(b) Contents of petition. The petition shall state that it is based upon a personal observation of the person concerned by the petitioner within a ten-day (10) period prior to filing. It shall include a description of the behavior that constitutes the basis for the petitioner's judgment that the person concerned is in need of care and treatment and that a likelihood of serious harm by reason of mental disability exists. In addition, the petitioner shall indicate what alternatives to certification are available; what alternatives have been investigated; and why the investigated alternatives are not deemed suitable.

(c) Certificates and contents thereof. A petition hereunder shall be accompanied by the certificates of two (2) physicians unless the petitioner is unable to afford, or is otherwise unable to obtain, the services of a physician or physicians qualified to make the certifications. The certificates shall be rendered pursuant to the provisions of § 40.1-5-5, except when the patient is a resident in a facility, the attending physician and one other physician from the facility may sign the certificates, and shall set forth that the prospective patient is in need of care and treatment in a facility and would likely benefit therefrom, and is one whose continued unsupervised presence in the community would create a likelihood of serious harm by reason of mental disability together with the reasons therefor. The petitions and accompanying certificates shall be executed under penalty of perjury, but shall not require the signature of a notary public thereon.

(d) Preliminary hearing. (1) Upon a determination that the petition sets forth facts constituting reasonable grounds to support certification, the court shall summon the person to appear before the court at a preliminary hearing, scheduled no later than five (5) business days from the date of filing. This hearing shall be treated as a priority on the court calendar and may be continued only for good cause shown. In default of an appearance, the court may issue a warrant directing a police officer to bring the person before the court.

(2) At the preliminary hearing, the court shall serve a copy of the petition upon the person and advise him or her of the nature of the proceedings and of his or her right to counsel. If the person is unable to afford counsel, the court forthwith shall appoint the mental health advocate for him or her. If the court finds that there is no probable cause to support certification, the petition shall be dismissed, and the person shall be discharged unless the person applies for voluntary admission. However, if the court is satisfied by the testimony that there is probable cause to support certification, a final hearing shall be held not less than seven (7) days, nor more than twenty-one (21) days, after the preliminary hearing, unless continued at the request of counsel for the person, and notice of the date set down for the hearing shall be served on the person. Copies of the petition and notice of the date set down for the hearing shall also be served immediately upon the person's nearest relatives or legal guardian, if known, and to any other person designated by the patient, in writing, to receive copies of notices. The preliminary hearing can be waived by a motion of the patient to the court if the patient is a resident of a facility.

(e) Petition for examination. (1) Upon motion of either the petitioner or the person, or upon its own motion, the court may order that the person be examined by a psychiatrist appointed by the court. The examination may be conducted on an outpatient basis and the person shall have the right to the presence of counsel while it is being conducted. A report of the examination shall be furnished to the court, the petitioner, and the person and his or her counsel at least forty-eight (48) hours prior to the hearing.

(2) If the petition is submitted without two (2) physicians' certificates as required under subsection (c), the petition shall be accompanied by a motion for a psychiatric examination to be ordered by the court. The motion shall be heard on the date of the preliminary hearing set by the court pursuant to subsection (d), or as soon thereafter as counsel for the subject person is engaged, appointed, and ready to proceed. The motion shall be verified or accompanied by affidavits and shall set forth facts demonstrating the efforts made to secure examination and certification by a physician or physicians and shall indicate the reasons why the efforts failed.

(3) After considering the motion and such testimony as may be offered on the date of hearing the motion, the court may deny the application and dismiss the petition, or upon finding: (i) That there is a good cause for the failure to obtain one or more physician's certificates in accordance with subsection (c); and (ii) That there is probable cause to substantiate the allegations of the petition, the court shall order an immediate examination by two (2) qualified psychiatrists, pursuant to subsection (e)(1).

(f) Professional assistance. A person with respect to whom a court hearing has been ordered under this section shall have, and be informed of, a right to employ a mental health professional of his or her choice to assist him or her in connection with the hearing and to testify on his or her behalf. If the person cannot afford to engage such a professional, the court shall, on application, allow a reasonable fee for the purpose.

(g) Procedure. Upon receipt of the required certificates and/or psychiatric reports as applicable hereunder, the court shall schedule the petition for final hearing unless, upon review of the reports and certificates, the court concludes that the certificates and reports do not indicate, with supporting reasons, that the person who is the subject of the petition is in need of care and treatment; that his or her unsupervised presence in the community would create a likelihood of serious harm by reason of mental disability; and that all alternatives to certification have been investigated and are unsuitable, in which event the court may dismiss the petition.

(h) Venue. An application for certification under this section shall be made to, and all proceedings pursuant thereto shall be conducted in, the district court, or family court in the case of a person who has not yet reached his or her eighteenth (18th) birthday, of the division or county in which the subject of an application may reside or may be, or when the person is already a patient in a facility, in the district court or family court of the division or county in which the facility is located, subject, however, to application by any interested party for change of venue because of inconvenience of the parties or witnesses or the condition of the subject of the petition or other valid judicial reason for the change of venue.

(i) Hearing. A hearing scheduled under this section shall be conducted pursuant to the following requirements:

(1) All evidence shall be presented according to the usual rules of evidence that apply in civil, non-jury cases. The subject of the proceedings shall have the right to present evidence in his or her own behalf and to cross examine all witnesses against him or her, including any physician who has completed a certificate or filed a report as provided hereunder. The subject of the proceedings shall have the further right to subpoena witnesses and documents, the cost of such to be borne by the court where the court finds, upon an application of the subject that the person cannot afford to pay for the cost of subpoenaing witnesses and documents.

(2) A verbatim transcript or electronic recording shall be made of the hearing that shall be impounded and obtained or examined only with the consent of the subject thereof (or in the case of a person who has not yet attained his or her eighteenth (18th) birthday, his or her parent, guardian, or next of kin) or by order of the court.

(3) The hearing may be held at a location other than a court, including any facility where the subject may currently be a patient, where it appears to the court that holding the hearing at another location would be in the best interests of the subject thereof.

(4) The burden of proceeding and the burden of proof in a hearing held pursuant to this section shall be upon the petitioner. The petitioner has the burden of demonstrating that the subject of the hearing is in need of care and treatment in a facility, is one whose continued unsupervised presence in the community would create a likelihood of serious harm by reason of mental disability, and what alternatives to certification are available, what alternatives to certification were investigated, and why these alternatives were not deemed suitable.

(5) The court shall render a decision within forty-eight (48) hours after the hearing is concluded.

(j) Order. If the court at a final hearing finds by clear and convincing evidence that the subject of the hearing is in need of care and treatment in a facility, and is one whose continued unsupervised presence in the community would, by reason of mental disability, create a likelihood of serious harm, and that all alternatives to certification have been investigated and deemed unsuitable, it shall issue an order committing the person to the custody of the director for care and treatment or to an appropriate facility. In either event, and to the extent practicable, the person shall be cared for in a facility that imposes the least restraint upon the liberty of the person consistent with affording him or her the care and treatment necessary and appropriate to his or her condition. No certification shall be made under this section unless and until full consideration has been given by the certifying court to the alternatives to in-patient care, including, but not limited to, a determination of the person's relationship to the community and to his or her family, of his or her employment possibilities, and of all available community resources, alternate available living arrangements, foster care, community residential facilities, nursing homes, and other convalescent facilities. A certificate ordered pursuant to this section shall be valid for a period of six (6) months from the date of the order. At the end of that period the patient shall be discharged, unless he or she is discharged prior to that time, in which case the certification shall expire on the date of the discharge.

(k) Appeals. (1) A person certified under this section shall have a right to appeal from a final hearing to the supreme court of the state within thirty (30) days of the entry of an order of certification. The person shall have the right to be represented on appeal by counsel of his or her choice or by the mental health advocate if the supreme court finds that he or she cannot afford to retain counsel. Upon a showing of indigency, the supreme court shall permit an appeal to proceed without payment of costs, and a copy of the transcript of the proceedings below shall be furnished to the subject of the proceedings, or to his or her attorney, at the expense of the state. The certifying court shall advise the person of all his or her rights pursuant to this section immediately upon the entry of an order of certification.

(2) Appeals under this section shall be given precedence, insofar as practicable, on the supreme court dockets. The district and family courts shall promulgate rules with the approval of the supreme court to insure the expeditious transmission of the record and transcript in all appeals pursuant to this chapter.

(l) Submission to NICS database.

(1) The district court shall submit the name, date of birth, gender, race or ethnicity, and date of civil commitment to the NICS database of all persons subject to a civil court certification order pursuant to this section within forty-eight (48) hours of certification.

(2) Any person affected by the provisions of this section, after the lapse of a period of three (3) years from the date such civil certification is terminated, shall have the right to appear before the relief from disqualifiers board.

(3) Upon notice of a successful appeal pursuant to § 40.1-5-8(k), the district court shall, as soon as practicable, cause the appellant's record to be updated, corrected, modified, or removed from any database maintained and made available to the National Instant Criminal Background Check System (NICS) and reflect that the appellant is no longer subject to a firearms prohibition as it relates to 18 U.S.C. 922(d)(4) and 18 U.S.C. 922(g)(4).

History of Section.
(P.L. 1974, ch. 119, § 1; P.L. 1976, ch. 140, § 19; P.L. 1976, ch. 203, § 1; P.L. 1976, ch. 215, § 1; P.L. 1982, ch. 242, § 1; P.L. 1988, ch. 163, § 1; P.L. 1993, ch. 315, § 1; P.L. 2014, ch. 423, § 2; P.L. 2014, ch. 455, § 2.)