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