The term “forensic” in this context refers to the crossover between mental health and the law. In the case of criminal courts, “forensic mental health” services involve the treatment and assessment of individuals involved in the criminal legal system who have a mental illness.
Court Ordered Evaluations
When the court has a question about a defendant’s mental health and how it may impact his or her current ability to participate in court or how their mental illness may have influenced their behavior during a crime, the court will order a forensic evaluation.
What types of Forensic Evaluations do criminal courts order?
The most common evaluations are for Competency to Stand Trial and Mental State at the Time of the Offense, but the court may order other evaluations.
- Competency to Stand Trial Evaluations are ordered when there are concerns about a defendant’s ability to understand the court process and participate in their own defense. If there are any doubts about a defendant’s competency to stand trial, the entire trial process will be put on hold until the evaluation is conducted. Evaluators will be appointed to assess:
- the defendant’s understanding of the seriousness of their charges and likely consequences
- the defendant’s ability to participate in the trial and ability to understand the court proceedings
- the defendant’s ability to assist their attorney in their own defense
- Mental Status at the Time of the Offense (aka Sanity) Evaluations are ordered when the defendant and their attorney are considering a “sanity defense” and are only completed at the request of the defendant. These evaluations assess an individual’s mental state at the time the offense was committed, to determine whether:
- they understood the nature, character, and consequences of their act; or
- they were unable to distinguish right from wrong; or
- whether they were unable to resist the impulse to commit the act.
Once the evaluation is completed, the defendant will decide whether to present that as a defense at trial. If found Not Guilty by Reason of Insanity (NGRI) at trial, individuals will be ordered for further evaluation by DBHDS evaluators.
Who will be conducting the evaluation?
These evaluations are completed by clinical psychologists or psychiatrists with specialized training in legal issues and forensics. These evaluations may occur while the defendant is in the community on bond, in jail, or in a DBHDS hospital. The location of the evaluation will be decided by the judge.
What if I think someone needs an evaluation?
Family members, friends, and individuals charged with crimes cannot request an evaluation, nor can they request that someone be transferred to a DBHDS hospital. If you believe your family member needs an evaluation, you may ask his or her defense attorney.
Competency to Stand Trial
Following a court-ordered evaluation of Competency to Stand Trial, the court may find a defendant incompetent and order services to restore them to competency. If there are any doubts about a defendant’s competency to stand trial, the entire trial process will be put on hold until their competency is restored.
Competency restoration services include educational and training services targeting the defendant’s understanding of:
- their criminal charges
- courtroom personnel
- courtroom procedures
- criminal pleas
- potential sentencing outcomes
In Virginia, the court will order the defendant to receive restoration services on an outpatient basis unless they specifically find that the defendant requires inpatient hospital treatment. “Outpatient” and “community-based” are terms used interchangeably to describe restoration services that take place in a setting other than an inpatient hospital. This could be in the jail or in the larger community setting.
Inpatient Competency Restoration Services:
Inpatient restoration services may be ordered if the court specifically finds that the defendant requires inpatient hospital treatment. These services are provided at a hospital designated by the Commissioner of DBHDS.
If you or a loved one have been ordered to receive Inpatient Competency Restoration Services, you can get information on State Hospital Forensic Admissions.
Outpatient Competency Restoration Services
Outpatient restoration services are provided by the local Community Services Board serving the region where the defendant is currently located. If they are in jail they will be seen in the jail, and if they are living in the community, they will be seen in the community. Upon receiving the court order for Outpatient Competency Restoration services, the local CSB will reach out to the defendant to initiate services.
If you or a loved one have been ordered to receive Outpatient Competency Restoration services, you can contact your local Community Services Board for more information.
Mental Health Treatment for Individuals in Jail
If you have concerns about the treatment of a loved one in jail, it is best to contact the jail directly. You can request to speak with mental health and/or the officer over medical services. If your concerns are not addressed and you believe your loved one is being abused, neglected, or provided with inadequate care, you may contact the Office of the Inspector General’s Healthcare Complaint Hotline at 1-833-333-OSIG (6744).
Difference Between a Local Jail, Regional Jail, and Prison
There are two types of jails in Virginia — local and regional. Local jails usually house individuals with charges in a single locality (i.e., city or county) and are run by an elected Sheriff. Regional jails serve several localities and are run by a Superintendent. The Superintendent typically answers to a Board made up of the Sheriffs and city administrators of the localities that feed into it.
Individuals are incarcerated in jails before and during their trial if they are not released on bond, or if they are serving sentences of less than one year. Some individuals sentenced to over 12 months of incarceration may remain in a local or regional jail for a period before being transferred to a prison operated by the Virginia Department of Corrections (DOC). DBHDS has no authority or control of the jails or DOC facilities, nor does it have any input into the care or security decisions made by jails or prisons.
Jail Diversion Initiatives
Diversion initiatives come in a variety of forms, but all essentially strive to identify individuals diagnosed with serious mental illnesses (SMI) and co-occurring disorders (early identification), divert individuals away from the criminal justice system, and connect individuals to meaningful services and treatment (as early as possible, but often during initial court appearance, during incarceration, or upon release from jail). Not every individual will be eligible for Jail Diversion services, and they are not available in every locality at this time. If you or a loved one are interested in finding out whether diversion services exist in your locality, contact your local Community Services Board for more information
Behavioral Health Docket
Individuals with behavioral health disorders may be eligible to participate on a Behavioral Health Docket. These are specialized court dockets within the existing structure of Virginia’s circuit and district court system offering judicial monitoring of intensive treatment, supervision, and alternatives to traditional criminal case processing. These dockets usually require the individual to participate in mental health treatment for an extended period of time in exchange for dismissed or reduced charges or a reduction in sentence.
Not all courts offer behavioral health dockets, and not everyone with a behavioral health disorder will be eligible for them. If you think your loved one might be eligible to participate, the individual’s defense attorney is the best place to start. They are usually responsible for referring the defendant to the docket.
State Hospital Forensic Admissions
When a court orders an individual to be evaluated or treated on an inpatient basis, they will be admitted to a behavioral hospital operated by DBHDS. The most common forensic admissions are for:
- emergency treatment from jail
- forensic evaluation of competency to stand trial or mental status at the time of the offense
- restoration of competency to stand trial
- a finding of Not Guilty by Reason of Insanity
Once DBHDS receives the court order from the court, the Department works to admit the individual as quickly as possible. For individuals in pretrial status (i.e., not convicted) who are admitted from a local or regional jail, the individual will typically return to jail once the court order is fulfilled, in order to proceed with their criminal case.
If you have questions about an individual’s admission, treatment, or evaluation status, you may contact the hospital’s designated Forensic Coordinator. The Forensic Coordinator may not be able to divulge any information to a family member unless the patient signs a release of information form.
Not Guilty by Reason of Insanity (NGRI)
Individuals found not guilty by reason of insanity (NGRI) by a criminal court have been found not criminally responsible for the crimes they committed while severally mentally ill. Instead of receiving a sentence of jail or prison, the individual is subject to a series of mental health evaluations and may be court ordered to receive treatment on an inpatient or outpatient basis.
What happens after an NGRI finding by the court?
After being found NGRI, the individual will be ordered to receive two independent evaluations. These are often referred to as “Temporary Custody Evaluations” and they are intended to give the court expert opinions about the treatment and monitoring needs of the individual (also referred to as “acquittee”) from that point forward. Evaluators must recommend one of these three options: release to the community with conditions (“conditional release”), commitment to the Department of Behavioral Health and Developmental Services for inpatient treatment (“commitment”), or release without conditions (“unconditional release”).
Where do the Temporary Custody Evaluations take place?
The court may authorize that these evaluations be conducted on an outpatient basis in the community at large, or the court may order these evaluations to occur on an inpatient basis. Most individuals are admitted for inpatient evaluation at a DBHDS hospital.
Upon receipt of the court’s order, DBHDS will initiate direct contact with the acquittee to begin coordinating the evaluations. If the court has authorized outpatient evaluation, DBHDS will assess appropriateness for that option and make a final decision. If the court orders inpatient evaluation, DBHDS will arrange for admission to a state hospital as soon as possible. If the individual is in jail, the jail will be contacted to coordinate transfer.
What happens after the Temporary Custody Evaluations are completed?
The court will receive both evaluations and will conduct a hearing. If the court commits the acquittee to a DBHDS hospital for inpatient treatment, the individual will begin the process of graduated release, where they gradually receive increasing privileges and access to the community until such time as the court authorizes release to the community.
How long someone stays in DBHDS custody depends on their response to mental health treatment and their risk for violence, and the ultimate decision about release is up to the judge. The Commissioner of DBHDS may petition the committing court for conditional or unconditional release of the acquittee at any time he believes the acquittee no longer needs hospitalization. An acquittee has the right to request release once per year at the time of annual review and can do so by consulting with their attorney.
If the court authorizes Conditional Release following the Temporary Custody Evaluation period, the acquittee will have to follow a Conditional Release Plan (CRP) upon release from the hospital, which outlines all of the services and activities that they will be required to follow. This CRP is developed by the Community Services Board (CSB) in consultation with the acquittee and his or her treatment team. If the acquittee does not follow the conditions ordered by the court, they may be held in contempt of court or they may be revoked and returned to the hospital for further inpatient treatment.
If the court authorizes Unconditional Release following the Temporary Custody Evaluation period, the acquittee will be released (if in the hospital) and there will be no further court-ordered obligations. The case is effectively closed. Acquittees are always provided with assistance developing a “release plan” that identifies available support and treatment services, which they may voluntarily participate in if they choose. If you know your family member was admitted to a state hospital for NGRI evaluation, you may contact the hospital’s designated Forensic Coordinator.
