If a Virginia state psychiatric facility says it has no bed for a patient under a temporary detention order, can law enforcement just leave the patient there, or hold them at the hospital past the 72-hour TDO limit?

Subject

Law enforcement custody during temporary detention orders when the receiving state facility has no available bed, and the duration of TDO custody.

Plain-English summary

Sheriff Bryant of Albemarle County asked the AG three connected questions about Virginia's chronic state psychiatric bed shortage. Patients under temporary detention orders are increasingly held in emergency rooms for long periods because state facilities cannot admit them. Law enforcement officers, who must stay with the patient until handoff, end up tied to the ER for entire shifts.

Question one: when the state facility designated in the TDO does not have a bed and asks the sheriff to delay transport, can law enforcement maintain custody of the patient during that delay? AG Jason Miyares said yes. Section 37.2-809(E) requires law enforcement to maintain custody until the temporary detention facility accepts custody. Although the statute does not give a time limit and does not require a state facility to admit immediately, it also does not give law enforcement an exit. The sheriff has to keep custody until the facility takes the patient.

Question two: can law enforcement just transport the patient to the facility and leave them there if the facility says it does not have a bed? AG said no. Section 37.2-809.1(B) is unambiguous: a state facility cannot fail or refuse to admit unless an alternative facility agrees to accept the person. But the same statute does not require immediate admission. So the sheriff cannot leave the patient at a non-accepting facility. The result is uncomfortable: the receiving facility cannot reject the patient ultimately, but it can delay admission, and the sheriff has to keep the patient until that admission actually happens.

Question three: if the 72-hour TDO period runs out while the patient is still in custody waiting for a bed, can the sheriff continue holding the patient under the TDO? AG said no. Section 37.2-809(H) caps temporary detention at 72 hours, extended for weekends, holidays, or other days the court is lawfully closed. Once that limit hits, the opinion concludes there is no legal authority to continue TDO custody, assuming there is no other legal basis to detain the person.

What this means for you

If you are a sheriff or deputy who has just executed a TDO

The opinion gives three answers. First, where the magistrate designates law enforcement to execute the TDO and provide transportation, current law directs that the person "shall remain in the custody of law enforcement until custody has been accepted by the temporary detention facility," and the opinion notes the law sets no time frame for that acceptance. Second, the opinion concludes the law does not permit law enforcement to transfer the person to the facility unless the facility accepts custody for admission. Third, the opinion concludes there is no legal authority to continue TDO custody beyond the limit in § 37.2-809(H).

If you are a special justice or magistrate

The opinion reads § 37.2-809(H) as capping temporary detention at 72 hours, extended only for weekends, holidays, or other days the court is lawfully closed, with no other statutory extension. After that limit, the opinion concludes there is no authority to continue TDO custody absent another legal basis.

If you administer a state psychiatric facility under DBHDS

The opinion reads § 37.2-809.1(B) to bar a state facility from failing or refusing to admit an individual "unless an alternative facility that is able to provide temporary detention and appropriate care agrees to accept the individual." At the same time, the opinion concludes the law neither requires a state facility to accept immediate custody nor prohibits a facility from delaying admission when a bed is not available.

If you represent a patient detained under a TDO

The opinion concludes that, assuming no other legal basis to detain, Virginia law does not authorize involuntary detention under a TDO after the limit in § 37.2-809(H) expires. It does not address what remedies a person held past that limit may have.

Common questions

Q: Does law enforcement have to stay with the patient even if it takes days?
A: Under the opinion, yes. Current law directs that the person remains in law enforcement custody until the temporary detention facility accepts custody, and the opinion notes the law does not set a time frame for that acceptance.

Q: Does the 72-hour clock include weekends and holidays?
A: The opinion reads § 37.2-809(H) as limiting temporary detention to 72 hours before a hearing, "except as extended by weekends, holidays, or other days on which the court is lawfully closed."

Q: Once the 72-hour limit hits, does the patient have to be released?
A: The opinion concludes that, assuming no other legal basis to detain, there is no authority to continue TDO custody after the § 37.2-809(H) limit. A commitment order entered after a hearing would be a separate legal basis; the opinion does not analyze that scenario in detail.

Q: What if the facility refuses admission and there is no alternative facility?
A: The opinion reads § 37.2-809.1(B) to bar a state facility from failing or refusing to admit an individual unless an alternative facility agrees to accept them. The opinion does not address remedies against a facility that nonetheless refuses; it holds that law enforcement may not transfer the person unless the facility accepts custody.

Background and statutory framework

Virginia's civil commitment process under Title 37.2 has multiple stages. As the opinion describes it, the process ordinarily begins with an emergency custody order (ECO), during which a community services board employee or designee evaluates the person. If a magistrate then finds the detention criteria in § 37.2-809(B) are met, the magistrate issues a temporary detention order (TDO) directing that the person be taken into custody and transported to a temporary detention facility pending an involuntary commitment hearing.

The TDO is supposed to be a brief bridge: detain the person, transport to the temporary detention facility, hold for screening and evaluation, hold the commitment hearing within 72 hours. The bed-shortage crisis broke this bridge. State facilities are at or beyond capacity, and admissions are routinely delayed. Sheriffs and deputies remain with patients in ERs for entire shifts or longer.

Section 37.2-809.1(B), passed in response to the bed-shortage problem, requires state facilities to admit unless an alternative facility agrees to accept the patient. The "no refusal without alternative" rule was meant to close the door on state facilities turning away TDO patients. But, as the AG reads it, the rule does not force immediate admission, only ultimate admission. The result is delay, not refusal.

The 72-hour cap in § 37.2-809(H) operates as a hard limit. The opinion reads it as limiting temporary detention to 72 hours before a hearing, extended only for weekends, holidays, or other days the court is lawfully closed, and concludes there is no authority to hold a person under a TDO past that limit absent another legal basis.

Citations and references

Statutes:

• Va. Code Ann. § 37.2-808 (ECO)
• Va. Code Ann. § 37.2-809 (TDO)
• Va. Code Ann. § 37.2-809.1 (state facility duty to admit)
• Va. Code Ann. § 37.2-810 (TDO transportation)
• Va. Code Ann. § 37.2-1104 (medical TDO)

Cases:

• Commonwealth v. Am. Radiator & Standard Sanitary Corp., 202 Va. 13 (1960) (legislative acquiescence in long-standing administrative construction)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/22-061-Bryant-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

COMMONWEALTH OF VIRGINIA

Office of the Attorney General

Jason S. Miyares
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

January 19, 2023

The Honorable Chan R. Bryant
Sheriff, Albemarle County
411 East High Street, Building B
Charlottesville, Virginia 22902

Dear Sheriff Bryant:

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

Issues Presented

You ask several questions related to the execution of temporary detention orders ("TDOs"). First, you ask if law enforcement may maintain custody of an individual under a TDO until a bed at the facility of temporary detention becomes available. Next, you inquire whether law enforcement may transfer custody of an individual under a TDO to the facility of temporary detention when the facility does not have any available beds and is unwilling to accept custody. Finally, you ask if law enforcement may continue detaining an individual under a TDO once the statutory period of temporary detention expires.

Response

In my opinion, if a magistrate designates law enforcement to execute a TDO and provide transportation, law enforcement must execute the order without delay and maintain custody of the individual until custody is accepted by the temporary detention facility. Further, the law does not permit law enforcement to transfer an individual under a TDO to the facility of temporary detention unless the facility accepts custody of the individual for admission. Finally, it is my opinion that there is no legal authority for law enforcement to continue custody of an individual pursuant to a TDO beyond the length of time specified in Code § 37.2-809(H).

Background

You state that individuals subject to TDOs often remain in emergency rooms for days while waiting for a bed to become available at a state facility. Law enforcement remains with these individuals during this time, taking officers away from their community policing responsibilities. You also relate that there are times when law enforcement transports an individual under a TDO to the state facility designated in the order and the facility is unable to admit the person, citing the lack of an available bed.

Applicable Law and Discussion

Your questions relate to the temporary detention process, a stage in Virginia's civil commitment process. As this Office previously has expressed, "[t]he primary purpose of the civil commitment process is to protect the public and the person from harm as a result of the person's mental illness." Ordinarily, the commitment process begins with the issuance and execution of an emergency custody order ("ECO"). While an individual is in emergency custody, an employee or designee of the local community services board evaluates the person. If a magistrate then determines, based on all evidence readily available that the person meets the detention criteria set forth in Code § 37.2-809(B), the magistrate shall issue a TDO. A TDO is an order that directs that a person be taken into temporary custody and transported to a temporary detention facility pending an involuntary commitment hearing.

When issuing a TDO, a magistrate must "(i) specify the law-enforcement agency to execute the order and (ii) designate a transportation provider." In determining the transportation provider, the magistrate must consider any request to authorize transportation by an alternative transportation provider when such an alternative provider is identified to him. If no alternative transportation provider is available, willing, and able to provide transportation in a safe manner, the magistrate shall specify the primary law enforcement agency, who will execute the TDO and provide transportation.

A TDO also must identify a temporary detention facility, to be determined by the community services board that conducted the screening evaluation of the person to be detained. If the employee or designee of the community services board cannot identify a facility of temporary detention by the time the period of emergency custody expires, the person shall be detained in a state facility and the magistrate must indicate such state facility on the TDO. Temporary detention under a TDO generally is limited to 72 hours.

Question One

In the facts you present, the magistrate has identified a state facility as the facility of temporary detention and has designated that law enforcement provide transportation in addition to executing the TDO. You relate that the state facility often does not have an available bed and asks that transportation be delayed until a bed becomes available. You ask whether law enforcement has authority to maintain custody of the individual during the delay in transportation to the state facility.

Prior opinions of the Attorney General conclude that any law enforcement officer requested by a court to execute a TDO should do so without delay. Given the purpose of the commitment process, ideally, a TDO will be executed in a timely manner to avoid a break in custody between the ECO and the TDO. Once the TDO is executed, if law enforcement also has been designated to provide transportation, current law directs that the person shall remain in the custody of law enforcement until custody has been accepted by the temporary detention facility.

The law does not specify a time frame within which the facility of temporary detention must accept custody of an individual under a TDO. Although a state facility designated in a TDO cannot refuse to admit an individual, current law neither expressly requires a state facility to accept immediate custody of the person nor prohibits a state facility from delaying admission of an individual when a bed is not available. Because the law requires law enforcement to maintain custody until the temporary detention facility accepts custody of the individual, law enforcement must continue to maintain custody of an individual during any period of time that the individual is waiting for admission to the facility.

Question Two

You further relate that the state facilities often deny entry because they do not have an available bed for the individual. As such, you next ask whether law enforcement may leave an individual under a TDO at the temporary detention facility when the facility is unwilling to admit the individual.

Code § 37.2-809.1(B) states that "[u]nder no circumstances shall a state facility fail or refuse to admit an individual . . . unless an alternative facility that is able to provide temporary detention and appropriate care agrees to accept the individual for temporary detention." As noted above, however, the law does not require a state facility to admit an individual immediately, nor does it prohibit a state facility from delaying an admission. Accordingly, the law does not permit law enforcement to transfer an individual to a state facility unless the state facility accepts custody of the individual for admission.

Question Three

You state that in many instances, the period of temporary detention expires while the individual remains in the emergency department awaiting admission to the temporary detention facility. On that basis, you ask whether law enforcement has authority to continue maintaining custody of an individual if the period of temporary detention expires and the individual has not yet been accepted for admission by the temporary detention facility.

Code § 37.2-809(H) expressly limits the duration of temporary detention under a TDO. It provides that such detention shall not exceed 72 hours prior to a hearing, except as extended by weekends, holidays, or other days on which the court is lawfully closed. The time period during which law enforcement must maintain custody under a TDO therefore is not limitless. As noted by prior Attorneys General, assuming there is no other legal basis to detain the individual, Virginia law does not authorize involuntary detention under a TDO after the limit set forth in Code § 37.2-809(H) expires.

In sum, applying current law to the facts you describe, I conclude that when admission to a state facility is delayed, law enforcement must maintain custody of an individual subject to a TDO until the state facility accepts the individual or until the temporary detention period expires.

Conclusion

For the reasons stated above, it is my opinion that if a magistrate designates law enforcement to execute a TDO and provide transportation, law enforcement must execute the order without delay and maintain custody of the individual until custody is accepted by the temporary detention facility. Further, it is my opinion that the law does not permit law enforcement to transfer an individual under a TDO to the temporary detention facility unless the facility accepts custody of the individual for admission. Finally, it is my opinion that there is no legal authority for law enforcement to continue custody of an individual pursuant to a TDO beyond the length of time specified in Code § 37.2-809(H).

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General