Our View of the Legislature: Transportation of Individuals Under an Emergency Custody Order

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Our legislators have been hearing of experiences around the state where someone who was the subject of an emergency custody order or temporary detention order found themselves in the custody of law enforcement for an extended period of time. In many situations, the individual spent days in an emergency room with law enforcement nearby at all times.

Eleven different bills were submitted this year that attempted to get law enforcement out of the process as much as possible so they can get back to the rest of their duties, but also so that the person experiencing a mental health crisis could hopefully have a sense of a less restrictive process during their ECO/TDO. The bills started out each slightly different from the others in their approach. Most of the ideas were eventually combined into one bill, SB 268, which passed out of both bodies on March 7th.

With the heavily amended SB 268, a Magistrate may designate an Alternative Transportation provider if one is available at the issuance of the Emergency Custody Order. Otherwise, law enforcement will provide transportation for the ECO. In this model, law enforcement is to execute the ECO but may immediately transfer custody to the designated Alternative Transportation provider when one is available. SB 268 also allows that if a state facility is designated for the temporary detention order, the state facility may designate an available Alternative Transportation provider to transfer someone to the facility.

SB 268 also requires the Department of Behavioral Health and Developmental Services (DBHDS) to amend its existing Alternative Transportation contract to reflect the changes in the services provided.

SB 593 approached the situation in a slightly different way, attempting to get regular law enforcement officers out of the ECO/TDO transportation process by allowing for the creation of an auxiliary police force for the purpose of providing transportation and custody during the ECO/TDO process. This also passed both bodies on March 7th.

Finally, SB 202 passed both bodies on March 4th. This directs the Secretary of Health and Human Resources together with the Secretary of Public Safety and Homeland Security to study different options to increase the use of alternative custody arrangements for individuals who are subject to an ECO or TDO.

One concept that we were concerned about was contained in SB 713 (Deeds). That would have allowed for an emergency custody order to be extended for 23 hours (from 8 hours) if there is an appropriate 23-hour unit available. As those resources do not currently exist in most locations in Virginia, the bill was carried over until 2023.

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