Virginia’s involuntary commitment system is failing patients: dLCV report

RICHMOND, Va. (WRIC) — Charles Byers. Irvo Otieno. Their names have tragically become well-known in Central Virginia for how they died — in the custody of or by the hands of law enforcement.

What also became clear after both mens’ deaths is how badly and frequently they were failed by Virginia’s mental health system, including when magistrates issued temporary detention orders for psychiatric care. Neither man ever got the care he was ordered to receive before dying.

While thousands of Virginians do receive care and live to share their experiences, critics have long argued that the involuntary commitment process often fails mental health patients. The myriad ways in which it does so are at the center of a new analysis by the Disability Law Center of Virginia (dLCV).

According to the report, none of Virginia’s state agencies collect data on the involuntary commitment process to determine whether there are concerning trends in need of attention.

In an attempt to gain that kind of insight, dLCV surveyed a total of 79 people who either were actively working through or had recently been through the involuntary commitment process. Many of these individuals were found within Virginia’s hospital system.

In just the first several dozen surveys, the dLCV found Virginians regularly were not informed of their rights during the commitment process and did not receive disability accommodations from law enforcement, which impeded their ability to effectively communicate. Patients were reportedly restrained for excessively long periods of time, “even when they did not pose any active danger.”

One deaf respondent reported being handcuffed to a bed until their wrists bled, unable to sign to communicate until a nurse ordered police to remove them.

The dLCV found “restraints were not rare exceptions but routine practice”, noting that restraints should be rarely used during involuntary commitments — “and only to prevent immediate harm.”

Describing the shared accounts as “heartbreaking” and “traumatic,” the dLCV outlined the demographics of surveyed patients who were involuntarily committed, their grievances, their positive experiences and what the Commonwealth should do next to improve the system.

A look at the demographics of those surveyed

The vast majority of those surveyed by dLCV reported a mental illness as either a primary or co-occurring diagnosis, with several others reporting that they had a developmental disability such as autism. Multiple patients were blind or vision impaired, were deaf or hard of hearing or had a mobility impairment.

About 63% of those surveyed were white. The dLCV said this is consistent with Virginia’s statewide demographics. However, about 55% of those surveyed were female, which does not quite match up with statewide demographics. This slight skew could impact overall survey responses, per the agency.

More than a dozen of those surveyed were homeless at the time of their commitment.

“The people we spoke to who were homeless often explained that not having stable housing directly led to their commitment and prevented their release,” the report reads. “This was the case even when, by all appearances, the person was clinically stable.”

Interactions with law enforcement during this process

Just over 80% of those surveyed encountered law enforcement during the involuntary commitment process.

Of those individuals, nearly 60% either agreed or strongly agreed with the idea that police spoke to them in a respectful and calm manner. By contrast, 32% of respondents either disagreed or strongly disagreed.

Those surveyed were then asked if law enforcement made them feel safer — and the response to that question was more evenly split.

While 49% either agreed or strongly agreed that law enforcement made them feel safer, 39% either disagreed or strongly disagreed.

“Several first-hand accounts described tasering, racist threats and being physically dragged by police,” the report reads.

On the whole, those surveyed reported a higher satisfaction with how authorities treated them than they did with any other part of the process, per the report.

“We must note that this satisfaction with law enforcement does not paint a full picture,” the report reads. “People with the worst police interactions, notably death or serious injury, would not have reached mental health hospitals to complete surveys, which likely skews satisfaction upward. Still, it is encouraging to know that, for this sample at least, experiences with law enforcement have been largely positive.”

Findings show an ‘unacceptable’ routine use of restraints

Handcuffs were used on a number of respondents, who reported being handcuffed during transport between locations and while lying in hospital beds. Many were also denied accommodations for their disabilities.

Examples provided in the report include the experience of a deaf patient who said an officer “clamped [the] handcuff on my wrist until blood splattered.” As she uses sign language to communicate, she could not do so until a nurse ordered that an officer release her.

One respondent said that their adult child with special needs had his wrists cut by handcuffs.

“I was handcuffed alone in the back of the police vehicle used to transport me from the ER to the hospital,” another said. “I don’t think handcuffs were necessary at all.”

The dLCV said that, per its findings, it’s clear that “restraints [are] not rare exceptions but routine practice.”

“The use of restraints of any kind during involuntary commitment should be rare and only to prevent immediate harm,” the report reads. “The practices reported to dLCV are unacceptable and must be reassessed at the local and state levels.”

Patient experiences in emergency departments

Just over 76% of those surveyed went through an emergency department during their involuntary commitment process.

While more than half of the respondents said that emergency department staff were available to them when needed, the majority strongly disagreed with the idea that staff actually responded to their needs.

An even larger portion of those surveyed strongly disagreed with the idea that staff treated them with dignity and respect.

Of those who did not visit an emergency department during their involuntary commitment process, several said they were instead directly admitted to either a psychiatric unit or a hospital.

Perspectives on prescreenings, medical evaluations

Near the start of the involuntary commitment process, patients are meant to be “prescreened” by a trained mental health clinician.

That clinician is meant to determine whether the patient is a danger to themselves, a danger to others and/or unable to protect or care for themselves due to mental illness. They are also meant to be medically evaluated, as well as screened for both a possible urinary tract infection — which can sometimes manifest psychiatric symptoms — and for drug use.

Based on their findings, the clinician can choose to recommend that the person be temporarily detained for their own health and safety.

According to the report, nearly 30% of those surveyed could not remember if they had been prescreened.

“It seems that this uncertainty was often the result of people meeting with lots of different medical staff and having trouble understanding each staff’s role,” the report reads. “Several people also reported that, by this point in the process, they were so sedated [that] they didn’t remember anything.”

More than half of those surveyed did not feel that their prescreener heard and understood them, with 43% of them strongly disagreeing with the idea.

“Prescreener asked if I took daily walks,” one patient said. “I have no legs and am in a wheelchair.”

While 33% strongly agreed that their prescreener treated them with dignity and respect, 37% strongly disagreed.

Nearly 60% of those surveyed said they did not agree with the prescreener’s ultimate decision on their case.

“The fact that we interviewed so many people who were actively or very recently going through this process may have skewed this number somewhat,” the report reads. “Still, the issue remains that individuals do not feel empowered in this process.”

Importantly, no matter what a prescreener may determine, patients can still decide if they would like to voluntarily hospitalize themselves at this point in the process. Despite this, 65% of those surveyed said their prescreener did not give them this option.

“If I’m not aware [of the process], I can only imagine the other people that they’re taking advantage of,” one respondent said.

The dLCV emphasized the importance of all patients being given the opportunity to meaningfully participate in decisions about their care.

Experiences in commitment hearings, with attorneys

Within 72 hours of a person being temporarily detained under these circumstances, they must have a hearing with a magistrate to determine, based on evidence, if they need to be hospitalized for a longer period. However, only half of those surveyed said they met with a magistrate, according to the report.

“I was [temporarily detained,] but never had a hearing or a lawyer and never met with a judge, which I’m pretty sure is illegal,” one patient said. “I was initially told I was voluntary, only later to be informed by a police officer that it had been changed to involuntary, with no explanation as to why. I was sent to a state hospital without a hearing or a lawyer.”

Many respondents said that they were not able or not allowed to attend their hearings, with court-appointed attorneys attending in their place. Three told dLCV that they “had been so heavily medicated that they were not awake for their hearing.”

Attorneys were just ‘rubber stamps,’ ‘a formality’

According to the report, the majority of those surveyed reported that they were assigned a court-appointed attorney. However, 24% said they were not assigned one.

Across all parts of the involuntary commitment process, respondents were unhappiest with their attorneys, per the report.

“Most people in the survey reported that they did not feel they were represented fairly, nor did their attorney know them or meet with them for long enough to do so,” the report reads.

Those surveyed described their attorneys as not much more than “rubber stamps.”

“[The attorney was] just there as a formality more than anything,” one patient said. “The attorney just kind of sat there.”

Those who do not agree with the results of their commitment hearings can appeal the decision. However, only 37% of those surveyed reported being given information on their right to appeal.

“I had no idea about appeals until reading this survey,” one respondent said. “I was not offered the opportunity.”

Of those who appealed, only one respondent was successful in doing so.

“Barriers [to successful appeal] included lack of paperwork, misinformation, incorrect attorney contact information and sedation,” the report reads.

Recommendations for improving process, patient experience

The dLCV said that three major trends were apparent across all survey responses. Those are as follows:

• Prescreeners, hospitals, the courts and law enforcement are failing to effectively communicate these processes to people going through them
• Law enforcement and emergency departments are subjecting people to prolonged, abusive and often unnecessary restraint
• Personnel at all steps of this process do not have the needed competencies to serve people with disabilities, leading them to routinely violate patients’ rights

“These survey findings show that restraints, lack of information and exclusion from decision-making are not isolated incidents but patterns that strip people of autonomy and deepen trauma,” the report reads.

To close these gaps and fix the process, the dLCV recommends the following four changes:

• Develop statewide standards limiting restraints to true emergencies involving imminent danger
• Require both initial and periodic training for law enforcement, prescreeners and attorneys on disability rights, accessibility and accommodation
• Develop both protocols and plain-language materials to ensure that all people are adequately informed of the process and their rights
• Improve data collection throughout all parts of this process to ensure accountability

“Virginia can build a crisis system that balances the need for care with legal protections and community-based safety, shifting from control to collaboration,” the report reads.

Per the report, dLCV intends to continue to survey individuals who experience this process and regularly provide updates on their responses.

The full report can be viewed below: