Legislators call for full study on mental health services in criminal proceedings


Nicole Pasia


What started as a pointed discussion on providing acquitted individuals with access to mental health services evolved into a potential study under the bi-cameral Virginia Behavioral Health Commission.

This week, a workgroup from the Joint Subcommittee to Study Mental Health Services in the Commonwealth in the 21st Century, chaired by Del. Vivian Watts (D – Fairfax), agreed the topic of access to mental health services during criminal proceedings extended beyond a single bill’s enactment clause. 


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The workgroup began reviewing a section of HB 2047. The bill, introduced last session, allows a defendant to provide evidence, such as testimony from a psychiatrist or medical records, of their mental condition at the time of their alleged offense. A defendant may be acquitted of criminal charges if the evidence shows the individual has an autism spectrum disorder or intellectual or developmental disability and impacted their intent to commit the offense. 

The bill also states if a person is acquitted, the presiding judge may order an emergency custody order (ECO) to refer the person to mental health services if they fit the “relevant standard of danger to self or others.”

The work group’s initial task was to determine if this standard was the appropriate criteria to use when referring individuals to mental health services under the ECO. The work group had the option of recommending changes to either the relevant standard or ECO criteria, but legislative staff pointed out such changes could affect defendants outside of these specific court cases, as well as the bandwidth of the state’s behavioral health system. 

As a result, Watts took the opportunity to propose a more extensive study on how defendants with behavioral health issues can access appropriate services. She said courts may not even be fully aware that the acquittal process and referral to mental health services exist.  

“I’ve had conversations with the commonwealth’s attorneys who are not aware the presiding judge could carry out an ECO. There’s just an awful lot there that needs to be looked at with serious legal counsel [and] mental health stakeholders … at the table.”

Work group members discussed potential study objectives with legislative staff. These include: 

  • Whether an ECO is the appropriate pathway for linking individuals acquitted under HB 2047 to behavioral health services, and possible alternatives
  • Changing criteria need for an ECO 
  • Other court’s proceedings, such those overseeing drug use cases
  • Other states’ approaches
  • Data on the outcome of individuals after moving through a state’s mental health court system
  • Overall impact on the state’s behavioral health system

Subcommittee Chair Del. Robert Bell (R – Albemarle) expressed concern that while a full study was a “good idea,” it would take until next year to implement. He argued more immediate action might be needed.

“If something comes up in the meantime that might do something positive for the next year, I would certainly plan to talk with people and bring it as a bill, not to foreclose the thing we’re working on, but I’m worried we would wait a year and there would be some bad outcomes in the meantime.”

Anna Mendez, executive director for Partner for Mental Health, pointed out during her public testimony that such “bad outcomes,” involving the harm of the individual or others, have already occurred throughout the commonwealth. Mendez said more robust funding and staffing for community-based mental health services could have prevented them.

“In every single one of those cases, the person with mental illness attempted to access community-based care, prior to the [offense]. They were not able to [access care] due to lack of capacity in our community-based system.”

Other advocates have suggested other solutions to the state’s behavioral health network, such as creating a mental health docket within civil courts and avoiding criminal courts altogether.

The work group unanimously voted to recommend a full study of the most appropriate court proceedings to the Behavioral Health Commission for the next year.