Public Comments for: HB163 - Emergency custody and temporary detention; governing transportation & custody of minors and adults.
The Office of the Executive Secretary (the administrative offices of the state court system) has several implementation issues with this bill, House Bill 163. First, the changes to the alternative transportation authorization language remove the language requiring that the proposed alternative transportation provider (“ATP”) be identified to the magistrate. This change shifts the burden of determining the availability of a potential ATP to the magistrate. This shift would require an independent judicial officer, tasked with making the ultimate decision on an ATP based on evidence presented, and require that officer to actively collect the evidence that will then be used in a decision they must make. Additionally, the bill could make it less likely that ATPs will be utilized because it removes the current language requiring that a proposed ATP be identified to the magistrate. Although the bill requires a magistrate to consider "all options for alternative transport,” it is unclear where the magistrate is to find information about those options if no one is coming to the magistrate and requesting an ATP. Second, the bill would prevent magistrates from issuing a TDO if a hospital bed is not instantly available. This change to the statutes contradicts the existing statutory directive that the magistrate “shall issue” the TDO when the statutory TDO criteria are met. By adding the following language to Code sections 16.1-340.1 and 37.2-809 – “The magistrate shall not issue a temporary detention order until a facility of temporary detention that is ready and able to accept the minor upon issuance of the order has been identified.” – the bill links the magistrate’s ability to legally issue a TDO to the hospital’s ability to admit the respondent. Furthermore, the bill fails to give any guidance on how the facility’s ability to accept the respondent is to be verified or by whom. State law currently requires hospitals to accept patients in need of temporary detention if no other placement is available. Requiring magistrates to “verify” that the hospital is willing and able to comply with the law is unlikely to fix the underlying problem of hospital capacity. Finally, the bill adds language to the TDO statutes that makes the TDO void if the receiving facility does not immediately accept custody of the respondent upon arrival. This raises troubling repercussions for a respondent who has met the statutory criteria for temporary detention and is now left without direction or access to treatment without any evaluation of whether the initial circumstances leading to issuance of the TDO have abated or been resolved.