When a Virginia magistrate orders a state hospital as the place of mental-health detention, can the sheriff sit on the transport for up to four hours while everyone keeps looking for a better bed?

Plain-English summary

Campbell County Sheriff Steve Hutcherson asked the AG a tightly practical question that runs through Virginia's crisis-mental-health system every day. When the magistrate issues a temporary detention order (TDO) sending someone to a state psychiatric hospital because no private bed could be found in time, may the sheriff hold off on transporting the person for up to four hours while the community services board (CSB) and the state facility keep hunting for an alternative bed?

AG Mark Herring's answer was no. Section 37.2-808(O) creates the extra four hours for the CSB and the state facility to keep searching, but its plain language says nothing about delaying the sheriff. The opinion read the statute strictly, citing the canon that courts "may not add to a statute language which the legislature has chosen not to include."

The practical instruction: the sheriff has to start the trip to the designated state facility right away. If during the drive an alternative bed opens up, § 37.2-810(C) lets the sheriff divert to that facility instead.

The opinion added an important EMTALA carve-out in a footnote: when the person is in a hospital emergency department under federal Emergency Medical Treatment and Labor Act (EMTALA) protection and the medical condition is not yet stabilized, the emergency department has its own obligations. In that case, the ED physician may need to keep the person until they are stable or transferable to a facility able to treat the condition, and law enforcement should consult the physician about whether to delay transport. The opinion also flagged the medical TDO route in § 37.2-1104 for patients lacking decisional capacity.

The opinion also noted (with a forward-looking footnote) that the Department of Behavioral Health and Developmental Services had recently signed a contract with a private services provider (G4S) for alternative transportation on TDOs, which was expected to take some of the transport burden off local law enforcement.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Virginia's involuntary mental-health detention system runs in two phases. First, a magistrate may issue an emergency custody order (ECO) under § 37.2-808(A) when there's probable cause that a person, due to mental illness, will likely cause serious physical harm to self or others in the near future, or suffer serious harm due to inability to provide for basic needs, is in need of treatment, and is unwilling or incapable of volunteering. The ECO is valid for up to 8 hours (§ 37.2-808(K)). During that window, a CSB clinician evaluates the person and tries to identify a willing facility (§ 37.2-809(E), § 37.2-809.1). If no private facility is willing, the CSB identifies the area state facility on the preadmission screening report.

Before the ECO runs out, the magistrate issues a TDO under § 37.2-809(B) listing the state facility, and a sheriff is assigned transport under § 37.2-810(A). The TDO must be executed within 24 hours under § 37.2-809(I).

Section 37.2-808(O) is the statute the sheriff asked about. It provides:

In addition to the eight-hour period of emergency custody set forth in subsection G, H, or K, if [an] individual is detained in a state facility pursuant to subsection E of § 37.2-809, the state facility and an employee or designee of the community services board ... may, for an additional four hours, continue to attempt to identify an alternative facility that is able and willing to provide temporary detention and appropriate care to the individual.

The opinion reads "the state facility and ... the community services board" as the actors who get the extra four hours. The sheriff is not named, and the canon Dotti v. Virginia Board of Medicine (1991) and Brown v. Lukhard (1985) requires giving plain language plain effect.

Section 37.2-810(C) backs up the AG's reading by addressing what happens if the alternative facility is found during transport: the sheriff transports to that facility instead. The legislature, in other words, contemplated continuing search during transport, not a delay before transport.

The EMTALA carve-out: when a person is in a federally-regulated emergency department, 42 U.S.C. § 1395dd and 42 C.F.R. § 489.24 impose duties to screen and stabilize. An "appropriate transfer" cannot occur to a facility that cannot treat the patient's condition. So an ED physician may justify a delay in transport on independent medical grounds, and the sheriff should consult the ED physician in that scenario.

Common questions

Q: What does "without delay" mean in practice for a Virginia sheriff?
A: The opinion says transport must "commence" without delay. It doesn't define a specific timer, but the rule is meant to keep the transport from being held back while CSB and the state facility keep dialing other beds. As soon as the TDO is in hand and the person is ready for transport, the trip starts.

Q: What if a private bed opens up 30 minutes into the trip?
A: Section 37.2-810(C) covers that exact scenario. The sheriff redirects to the alternative facility. The opinion explicitly endorses this approach.

Q: Can the deputy stop along the route to wait for confirmation of an alternative bed?
A: The opinion does not address that, but the underlying rule was that the sheriff cannot park before transport to wait out the four-hour CSB search. A mid-route pause to confirm an active diversion is a different question. As a practical matter, deputies typically take calls en route rather than stopping.

Q: What if the person needs medical care before transport?
A: The footnote covers this. If the person is in an EMTALA-covered ED and is not yet stable, the ED physician has independent obligations and the sheriff should consult the physician about whether transport should wait. The medical TDO process in § 37.2-1104 may apply if the patient lacks capacity.

Q: Who pays for state facility detention if the person could have gone to a private bed?
A: That's a separate question the opinion does not address. Virginia funds state mental health facilities through the budget; private facility detention is billed differently.

Q: What about the new alternative-transportation contract mentioned in the opinion?
A: The footnote noted that under the 2018 contract between DBHDS and a private provider (G4S), alternative transportation on TDOs was expected to expand, which would shift some transport responsibility off local law enforcement. Some individuals with safety concerns still require law enforcement transport, but the statute and contract had begun reducing the burden by the time of this opinion.

Q: How long is the maximum total custody clock for a TDO?
A: ECO can last 8 hours (§ 37.2-808(K)); subsection O adds up to 4 more hours during which CSB/state facility may keep searching for an alternative; once TDO is issued, it must be executed within 24 hours (§ 37.2-809(I)); the TDO itself supports up to 72 hours of inpatient detention. These timers are independent of one another and operate sequentially.

Q: Could the sheriff be liable for delaying transport?
A: The opinion frames it as legal authority rather than tort liability. A sheriff who delays transport on the misreading of subsection O is acting outside statutory authority. Practical consequences would include patient harm during the delay and possible civil liability for unlawful continued seizure.

Citations

The opinion rests on § 37.2-808, particularly subsections A, K, and O, and on § 37.2-809(B), (E), (I) and § 37.2-810(A) and (C). It cites earlier Virginia AG opinions from 2004 and 1996 on the same topic, and the canon of construction expressed in Dotti, Brown, Alger, Barr, Kane, and Brockman. The EMTALA footnote draws on 42 U.S.C. § 1395dd and 42 C.F.R. § 489.24, plus § 37.2-1104 of the Virginia Code on medical TDOs.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2019/19-004Hutcherson-Issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

Cynthia E. Hudson
Chief Deputy Attorney General

October 25, 2019

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Steve A. Hutcherson
Sheriff, Campbell County
Post Office Box 280
Rustburg, Virginia 24588

Dear Sheriff Hutcherson:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented
You ask whether § 37.2-808(O) requires that a sheriff delay transportation of an individual for up to four hours following the issuance of a temporary detention order, when the order designates a state facility as the facility of detention due to the unavailability of other facilities, and the community services board and the designated state facility are attempting to locate an alternative facility of detention.

Background
The question you present arises in a scenario similar to the following:

An individual is taken into custody pursuant to an 8-hour emergency custody order.[1] A clinician from a local community services board (CSB) conducts an evaluation of the individual to determine whether he or she meets the criteria for temporary detention, which is a period of detention for up to 72 hours for inpatient mental health treatment. As part of his or her duties, the clinician also attempts to identify a mental health care facility that can accept the individual in the event the magistrate later orders temporary detention. Because the CSB clinician is unable to locate any mental health care facility other than the area's state facility, the clinician identifies that state facility as the facility that can provide treatment in a report that is then provided to the magistrate.[2]

Shortly before the expiration of the 8-hour emergency custody order, the magistrate reviews the evidence and issues a temporary detention order.[3] As directed by statute, the magistrate lists the state facility that has been identified by the CSB clinician as the facility of detention, in that no alternative facility could be located during the period of emergency custody.[4] Further, the magistrate orders that the local sheriff transport the individual to this facility.[5]

At this point in the process, a question arises as to whether the sheriff must transport the individual to the state facility without delay, or whether he is required under § 37.2-808(O) to delay transportation of the individual for up to four hours while the CSB and the designated state facility continue to attempt to locate an alternative facility.

Applicable Law and Discussion
Section 37.2-808(O) provides that upon the issuance of a temporary detention order listing a state facility as the facility of detention due to the unavailability of other facilities, the CSB and the state facility may continue to search for an alternative facility "for an additional four hours." The provision states as follows:

In addition to the eight-hour period of emergency custody set forth in subsection G, H, or K, if [an] individual is detained in a state facility pursuant to subsection E of § 37.2-809, the state facility and an employee or designee of the community services board ... may, for an additional four hours, continue to attempt to identify an alternative facility that is able and willing to provide temporary detention and appropriate care to the individual.[6]

In my opinion, the language of this provision is plain and must be applied as written.[7] While it affords an additional four hours for the state facility and the CSB to search for an alternative facility, it does not authorize a sheriff to delay transportation of an individual for up to four hours, until either an alternative facility is found or the additional four-hour period expires. Based on the rules of statutory construction, "[w]e 'assume the legislature chose, with care, the words it used when it enacted the relevant statute,'"[8] and "[courts] may not add to a statute language which the legislature has chosen not to include."[9]

Accordingly, consistent with guidance set forth in prior opinions of the Attorney General, it is my opinion that a sheriff in the circumstances you describe must commence transportation of an individual to the designated state facility without delay.[10] If, during the period of transport an alternative facility is identified, § 37.2-810(C) requires that the sheriff transport the individual to the alternative facility instead.[11]

Conclusion
For the foregoing reasons, it is my opinion that a sheriff is not authorized under § 37.2-808(O) to delay transportation of an individual following the issuance of a temporary detention order when the community services board and the designated state facility continue to search for an alternative facility. A sheriff should therefore commence transportation to the designated state facility without delay. If an alternative facility is identified during the period of transport, transportation should be provided to that facility instead.

With kindest regards, I am,
Very truly yours,

Mark R. Herring
Attorney General

1. An emergency custody order is an order authorizing the detention and evaluation of an individual who is believed to be experiencing mental illness. The order is issued by a magistrate under § 37.2-808 when he or she "has probable cause to believe that any person (i) has a mental illness and that there exists a substantial likelihood that, as a result of mental illness, the person will, in the near future, (a) cause serious physical harm to himself or others . . . , or (b) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs, (ii) is in need of hospitalization or treatment, and (iii) is unwilling to volunteer or incapable of volunteering for hospitalization or treatment." VA. CODE ANN. § 37.2-808(A) (2019). Such an order is valid for a maximum of 8 hours from the time of execution. VA. CODE ANN. § 37.2-808(K).
2. See VA. CODE ANN. § 37.2-809(E) (2019), and § 37.2-809.1 (2019) (providing that an employee or designee of the community services board shall identify a facility that can provide mental health treatment in the event a temporary detention order is issued; if no facility other than the area's state facility can be located, the employee or designee shall identify this state facility on the preadmission screening report submitted to the magistrate).
3. See VA. CODE ANN. § 37.2-809(B).
4. See VA. CODE ANN. § 37.2-809(E) (stating that if no other facility can be identified prior to the expiration of the emergency custody order, the magistrate shall list the state facility that has been identified by the employee or designee of the community services board as the facility of detention).
5. See generally VA. CODE ANN. § 37.2-810(A) (2019) (specifying the criteria by which the magistrate shall designate a law-enforcement agency to provide transportation on a temporary detention order). I note that under the terms of a new two-year contract between the Department of Behavioral Health and Developmental Services and a private services provider, the use of alternative transportation on temporary detention orders is anticipated to expand. See H.B. 1700, 2018 Reg. Sess., Item 311.E (Budget Appropriations Act), available at https://budget.lis.virginia.gov/get/budget/3929/. This is expected to alleviate some of the responsibility of law enforcement to provide transportation on temporary detention orders. Transportation by law enforcement, however, will continue as authorized under § 37.2-810, particularly as some individuals subject to a temporary detention order will not meet the criteria for alternative transportation due to safety concerns. See DEP'T OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES, DBHDS Awards G4S Contract (May 7, 2019), http://dbhds.virginia.gov/for-immediate-release-05072019.
6. VA. CODE ANN. § 37.2-809(E) (2019) (emphasis added).
7. See, e.g., Dotti v. Virginia Bd. of Med., 12 Va. App. 735, 740, 407 S.E.2d 8, 12 (1991) (citing Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985)).
8. Alger v. Commonwealth, 267 Va. 255, 261, 590 S.E.2d 563, 556 (2004) (quoting Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990)). "The act of choosing carefully some words necessarily implies others are omitted with equal care." Kane v. Szymczak, 41 Va. App. 365, 372, 585 S.E.2d 349, 353 (2003).
9. 2012 Op. Va. Att'y Gen. 90, 91 (quoting Cty. of Amherst Bd. of Supvrs. v. Brockman, 224 Va. 391, 397, 297 S.E.2d 805, 808 (1982)).
10. See 2004 Op. Va. Att'y Gen. 155, 157; 1996 Op Va. Att'y Gen. 161, 163. Section 37.2-809(I) of the Code provides that a temporary detention order must be executed no later than 24 hours of its issuance, unless the order specifies a shorter time of execution.
    In certain instances, an individual held under an emergency custody order may be at an emergency department covered by the federal Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. § 1395dd; 42 C.F.R. § 489.24, and have a medical condition that is not stabilized. This places an obligation on the emergency department to provide either further medical treatment to stabilize the condition or an "appropriate" transfer to another medical facility in compliance with EMTALA's guidelines. A transfer may not be appropriate if it is to a temporary detention facility that does not have the capability to treat the individual's condition. In such instances, the individual may need to remain in the emergency department or an acute care setting until his or her condition is stabilized or within the capability of the temporary detention facility to treat. In such cases, law enforcement officials should consult with the emergency department physician to determine if transport should be delayed to ensure the health and safety of the individual. The emergency department physician may also consider obtaining a medical temporary detention order if the individual lacks capacity to consent to necessary treatment and the requirements of § 37.2-1104 of the Code of Virginia are otherwise met.
11. See VA. CODE ANN. § 37.2-810(C) (2019).