The inevitable has happened: Virginia’s behavioral health system has been sued. The petition, filed by the Giles County Department of Social Services, alleges that due to a “violation of [the state’s] ‘Mandatory Admission Provisions’” a child in foster care spent four days in police custody despite a temporary detention order requiring her involuntary admission to the commonwealth’s public psychiatric hospital for children and adolescents.
Virginia’s involuntary psychiatric treatment law is unique among the 50 states: It requires state facilities to accept any patient declined admission by private hospitals. Simultaneously facing record-high patient populations and record-low staffing levels, the Department of Behavioral Health and Developmental Services began suspending admissions to state hospitals in the summer of 2021. As a result, people experiencing mental health crises have been handcuffed to gurneys in emergency departments for days, only to eventually be released without receiving any mental health treatment.
In May 2021, I began warning members of the General Assembly that a lawsuit was imminent. Virginia’s legal exposure results not only from admission freezes at state hospitals, but also from people being kept in police custody — deprived of their liberty — for periods of time which exceed that allowed by law.
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While the lawsuit only addresses the former complaint, it is the latter that carries the greatest legal liability. The state is not required to have a system of involuntary treatment, but when the state does provide involuntary hospitalization, it must do so in accordance with the legal process it has adopted.
The weakness of Giles County’s petition is its sole focus on harm that could have occurred as a result of nonadmission. The lawsuit states: “The … violation of Virginia’s Mandatory Admission Provisions constitutes a clear and present danger to [those] subject to temporary detention orders and other persons who may be harmed by the actions of [those] who are not admitted for treatment as ordered.”
By basing the lawsuit on likelihood of harm, Giles County has presented DBHDS with the strong argument that it is more dangerous to admit a person to involuntary treatment when staffing levels are inadequate to ensure patient safety than it is to deny admission under such circumstances.
There is precedence for this argument: The Virginia Department of Corrections has a history of refusing to receive inmates from local jails by the legal timeline when doing so would result in overcrowded, and unsafe, state prisons. Thus, the statutory “shall” is read as directory, rather than as mandatory. I imagine DBHDS will make the same argument here.
Regardless of the outcome of Giles County’s petition, what is undeniable is that it’s a symptom of a collapsed mental health service system. While reflexive responses of “Virginia must build more hospital beds” or “scrap the whole system and start from scratch” are understandable, they fail to acknowledge the commonwealth already has the third-highest number of inpatient psychiatric beds on a per capita basis; and if Virginia continues to underfund mental health care at the extent it has for decades, no new system will result in better outcomes.
Virginia is the 10th wealthiest state in the country, but it ranks 39th in per capita spending on community-based public mental health services. Annual spending on mental health services in the commonwealth would need to double to also have the 10th best funded mental health care system.
Until Virginia is willing to make an investment of that magnitude, additional lawsuits and preventable tragedies are inevitable. I was heartened to read Gov. Glenn Youngkin’s recent opinion piece in The Washington Times, where he promised to “bolster behavioral health services” and called on the commonwealth to “strive for a best-in-class [mental health care] system that serves all Virginians.”
Current state revenue streams are insufficient to achieve these goals set forth by the governor. Novel funding sources, such updating Virginia’s century-old tax code must be found. This includes initiating a tax on consumer services and adopting a progressive income tax structure.
Building more hospital beds does not result in preventing the need for hospitalization. Thankfully, there is a robust body of research identifying interventions that do. Evidence-based treatment such as assertive community treatment, intensive outpatient treatment and 23-hour crisis receiving centers are community-based services proven to dramatically reduce the incidence of hospitalization.
Unfortunately, inadequate funding means most Virginians who need these services cannot access them. People with mental illnesses deserve prompt access to culturally competent and evidence-based services in their home communities, no matter where they live in the commonwealth. It is time for our elected leaders to make this happen. All it takes is money and political will.
Anna Mendez is executive director of Partner for Mental Health, a nonprofit policy, advocacy, and service organization based in Charlottesville. She serves on the advisory board of the Charlottesville-Albemarle Mental Health Therapeutic Docket and the board of directors of Mental Health America of Virginia. She is also a fellow at the University of Virginia’s Equity Center where her research focuses on the decriminalization of mental illness. Contact her at: [email protected]