2006 Code of Virginia § 37.2-806 - Judicial certification of eligibility for admission of persons with mental retardation

37.2-806. Judicial certification of eligibility for admission of personswith mental retardation.

A. Whenever a person alleged to have mental retardation is not capable ofrequesting admission to a training center pursuant to 37.2-805, a parent orguardian of the person or another responsible person may initiate aproceeding to certify the person's eligibility for admission pursuant to thissection.

B. Prior to initiating the proceeding, the parent or guardian or otherresponsible person seeking the person's admission shall first obtain (i) apreadmission screening report that recommends admission to a training centerfrom the community services board or behavioral health authority that servesthe city or county where the person who is alleged to have mental retardationresides and (ii) the approval of the training center to which it is proposedthat the person be admitted. The Board shall adopt regulations establishingthe procedure and standards for the issuance of such approval. Theseregulations may include provision for the observation and evaluation of theperson in a training center for a period not to exceed 48 hours. No personalleged to have mental retardation who is the subject of a proceeding underthis section shall be detained on that account pending the hearing except forobservation and evaluation pursuant to the provisions of this subsection.

C. Upon the filing of a petition in any city or county alleging that theperson has mental retardation, is in need of training, treatment, orhabilitation, and has been approved for admission pursuant to subsection B ofthis section, a proceeding to certify the person's eligibility for admissionto the training center may be commenced. The petition shall be filed with anydistrict court or special justice. A copy of the petition shall be personallyserved on the person named in the petition, his attorney, and his guardian orconservator. Prior to any hearing under this section, the judge or specialjustice shall appoint an attorney to represent the person. However, theperson shall not be precluded from employing counsel of his choosing and athis expense.

D. The person who is the subject of the hearing shall be allowed sufficientopportunity to prepare his defense, obtain independent evaluations and expertopinion at his own expense, and summons other witnesses. He shall be presentat any hearing held under this section, unless his attorney waives his rightto be present and the judge or special justice is satisfied by a clearshowing and after personal observation that the person's attendance wouldsubject him to substantial risk of physical or emotional injury or would beso disruptive as to prevent the hearing from taking place.

E. Notwithstanding the above, the judge or special justice shall summonseither a physician or a clinical psychologist who is licensed in Virginia andis qualified in the assessment of persons with mental retardation or a persondesignated by the local community services board or behavioral healthauthority who meets the qualifications established by the Board. Thephysician, clinical psychologist, or community services board or behavioralhealth authority designee may be the one who assessed the person pursuant tosubsection B of this section. The judge or special justice also shall summonsother witnesses when so requested by the person or his attorney. Thephysician, clinical psychologist, or community services board or behavioralhealth authority designee shall certify that he has personally assessed theperson and has probable cause to believe that the person (i) does or does nothave mental retardation, (ii) is or is not eligible for a less restrictiveservice, and (iii) is or is not in need of training, treatment, orhabilitation in a training center. The judge or special justice may acceptwritten certification of a finding of a physician, clinical psychologist, orcommunity services board or behavioral health authority designee, providedsuch assessment has been personally made within the preceding 30 days andthere is no objection to the acceptance of the written certification by theperson or his attorney.

F. If the judge or special justice, having observed the person and havingobtained the necessary positive certification and other relevant evidence,specifically finds that (i) the person is not capable of requesting his ownadmission, (ii) the training center has approved the proposed admissionpursuant to subsection B of this section, (iii) there is no less restrictivealternative to training center admission, consistent with the best interestsof the person who is the subject of the proceeding, and (iv) the person hasmental retardation and is in need of training, treatment, or habilitation ina training center, the judge or special justice shall by written ordercertify that the person is eligible for admission to a training center.

G. Certification of eligibility for admission hereunder shall not beconstrued as a judicial commitment for involuntary admission of the personbut shall authorize the parent or guardian or other responsible person toadmit the person to a training center and shall authorize the training centerto accept the person.

(1976, c. 493, 37.1-65.1; 1979, c. 204; 1980, c. 582; 1984, c. 425; 2005,c. 716.)