Medical malpractice; exacerbation of pre-existing mental health conditions

Summers v. Syptak, 801 S.E.2d 422 (Va. 2017)

The Virginia Supreme Court rules that in a claim by a patient that crude, offensive and sexually oriented remarks to the patient by the physician aggravated symptoms of the patient’s pre-existing multiple mental health and medical conditions, the plaintiff’s failure to designate an expert to testify that the physician’s conduct was the proximate cause of the harm experienced by the patient required dismissal under Virginia’s medical malpractice statute.

Found in DMHL Volume 36, Issue 3

NGRI; sentencing

Williams v. Commonwealth, 2017 WL 3751532 (Va. August 31, 2017)

The Virginia Supreme Court finds that in a case where defendant was found guilty on a charge of felony assault for one act and was found NGRI on another charge of felony assault for an act committed a month later, the trial court’s decision to order defendant to serve his prison term on his conviction before being hospitalized to treat his mental illness under the NGRI verdict did not result in a “grave injustice.” A concurring opinion noted the need for clarification in statutory guidance. A strong dissent argued that existing statutory law requires a different result.

Found in DMHL Volume 36, Issue 3

Virginia Capital Defendant Not Provided Ineffective Assistance of Counsel Just Because Defendant's Mental Health Expert Misdiagnosed Defendant

Bailey v. True, No. CR02-511 (E.D. Va. Apr. 15, 2003); 17(51) Virginia Lawyers Weekly 1288 (May 26, 2003)

The U.S. District Court for the Eastern District of Virginia refused to overturn the capital conviction of a defendant because of the purported ineffective assistance of counsel in presenting mental health evidence as a mitigating factor in the penalty phase of the trial.  The defendant's claim was characterized as being that his mental health expert had misdiagnosed him as having a personality disorder when he should have been diagnosed as having a bipolar disorder...

Found in DMHL Volume 23 Issue 1

Virginia Supreme Court Clarifies Scope and Operation of Sexually Violent Predator Commitment Law

Townes v. Commonwealth, 609 S.E.2d 1 (Va. 2005)

Legislation that permits prison inmates to be involuntarily hospitalized as a sexually violent predator (SVP) upon the completion of their prison term has been widely enacted across the country.  Courts asked to review this legislation have generally upheld it.  On the few occasions in which a court has read this legislation in such a way that its scope and impact is narrowed, legislators have tended to respond by enacting additional legislation that clarifies that they intended it to have a broader reach...

Found in DMHL Volume 24 Issue 2

Out-of-State Physician Can Provide Expert Testimony About Virginia Standard of Care

Christian v. Surgical Specialists, 596 S.E.2d 522 (Va. 2004)

The Virginia Supreme Court reversed a trial court decision to exclude an out-of-state physician from providing expert testimony regarding the Virginia standard of care in a medical malpractice case.  The trial court had ruled that the New York physician, although familiar with the national standard of care, was not sufficiently familiar with the Virginia standard of care and thus was not qualified to testify as an expert witness under § 8.01-581.20 of the Virginia Code...

Found in DMHL Volume 24 Issue 1

Physician at Virginia Mental Health Facility Ordered Reinstated

Horner v. Dep't Mental Health, 597 S.E.2d 202 (Va. 2004)

Ending a long-standing employment dispute at Western State Hospital, the Virginia Supreme Court ordered the reinstatement of a physician who had worked for six years as an internist at the state-run facility.  The physician had been fired on May 15, 2001.  He claimed he was fired for complaining publicly about the quality of psychiatric care at the hospital, while the state asserted he was fired for failure to follow a supervisor's instructions and for violating state policy regarding the disclosure of personnel records...

Found in DMHL Volume 24 Issue 1

Virginia Supreme Court Rejects Constitutional Challenges to Sexually Violent Predator Commitment Law

Shivaee v. Commonwealth, 613 S.E.2d 570 (Va. 2005)

The U.S. Supreme Court in Kansas v. Hendricks, 521 U.S. 346 (1997), and Kansas v. Crane, 534 U.S. 407 (2002), defused most federal constitutional challenges to the civil commitment of sexual offenders under the sexually violent predator (SVP) statutes enacted by many states in recent years.  State constitutions could, nevertheless, provide an alternative basis for challenging these enactments.

Found in DMHL Volume 25 Issue 1

Virginia Supreme Court Permits SVP to Rescind Refusal to Cooperate; General Assembly Establishes Procedure

Hood v. Commonwealth, 280 Va. 526, 701 S.E.2d 421 (2010)
found at

On November 4, 2010, the Virginia Supreme Court reversed the finding of the Pittsylvania County Circuit Court and remanded for a new trial a case decided under the Sexually Violent Predator Act. The Supreme Court determined that the circuit court’s decision that it had no discretion to permit a prisoner to rescind his refusal to cooperate with the Commonwealth’s mental health expert during the assessment examination violated the respondent’s procedural due process rights. The Court held that Virginia Code § 37.2-901 permitted, but did not require, the trial court to admit evidence of the respondent’s refusal and bar the respondent from introducing his own expert evidence. Virginia Code § 37.2-907(A) relating to the appointment of experts must be read in conjunction with § 37.2-901, even though it states that if the respondent refuses to cooperate with the examination under § 37.1-901, any expert appointed shall not be permitted to testify at trial nor any report be admissible. The Supreme Court held that due process requires the trial court to consider the circumstances surrounding the respondent’s refusal to cooperate and whether the respondent is currently ready to cooperate. The trial court thus has discretion as to what limits to place on admissibility of evidence. In this case, the respondent refused to cooperate before counsel was appointed to represent him and he was currently expressing a desire to cooperate. Virginia appears to be the only state that has such an evidentiary provision in its SVP Act.

In response to this decision, the General Assembly passed House Bill 1698 (Athey) and Senate Bill 1275 (Obenshain) on February 23, 2011, establishing procedures surrounding the respondent’s decision to rescind any refusal to cooperate. The respondent may rescind his refusal to cooperate and elect to cooperate with the mental health examination within 21 days of retention or appointment of counsel. Counsel for the respondent must provide written notice of the respondent’s election to cooperate to the court and the attorney for the Commonwealth within 30 days of the appointment or retention of counsel. The probable cause hearing is then postponed until 30 days after receipt of the mental health examiner’s report. If the respondent thereafter refuses to cooperate with the mental health examination, the court is required to admit evidence of such failure or refusal and to bar the respondent from introducing his own expert evidence. These bills are awaiting signature by the Governor.

Found in DMHL Volume 30 Issue 2

Hospital Not Liable for Counselor’s Sexual Harassment of Patients

Doe v. Fulton-DeKalb Hospital Authority, 628 F.3d 1325 (11th Cir. 2010)

The Eleventh Circuit Court of Appeals has held that Grady Memorial Hospital is not liable for one of its counselor’s sexual misconduct with three patients in its methadone treatment clinic. The plaintiffs alleged that the counselor made inappropriate sexual advances during drug counseling sessions, and that Grady failed to conduct an adequate background investigation prior to hiring the counselor and to adequately supervise the counselor. The Court found that under Georgia law an employer cannot be found liable for the sexual misconduct of an employee under the doctrine of respondeat superior. In addition, the Court upheld the finding of the district court that the hospital exercised ordinary care in the hiring process. While its screening protocols were less than ideal, the hospital had no actual notice of prior misconduct by this employee; he passed criminal background checks and a drug test; and he provided dishonest information during the application and interview process as to why he left his previous jobs. The fact that the hospital failed to comply with Georgia regulation requiring it obtain a five-year employment history on all applicants posed licensing problems only and did not impost tort liability on the hospital.

Found in DMHL Volume 30 Issue 3

Virginia Supreme Court Finds Use of Video Conferencing to Conduct Annual SVP Review Hearing Provides Due Process

Shellman v. Commonwealth, _Va._, 733 S.E.2d 242 (Nov. 1, 2012, No. 120261)
available at:

In a sexually violent predator’s (“SVP”) appeal of his recommitment to secure inpatient treatment, the Virginia Supreme Court held on November 1, 2012 that use of a two-way electronic video and audio communication system does not conflict with the respondent’s statutory and due process rights, including his right to counsel.

Reginald Shellman was convicted of aggravated sexual battery in Fairfax County Circuit Court in February 2001. Prior to his scheduled release, the Department of Corrections assessed him as a potential SVP and referred him to the Commitment Review Committee, which subsequently referred him to the Office of the Attorney General for a determination as to whether to seek commitment. Upon petition of the Attorney General and following the requisite hearings, the Fairfax County Circuit Court found Shellman to be a SVP and committed him to the Virginia Center for Behavioral Rehabilitation in Burkeville, Virginia, all in accordance with Chapter 9 of Title 37.2 of the Code of Virginia.

In 2011, the Virginia General Assembly amended Virginia Code § 37.2-910(A) to permit annual assessment reviews to be conducted, “whenever practicable,” by means of two-way electronic video and audio communications. As a result, and over the objection of the respondent, the court held Shellman’s annual review proceeding by video conference. Present in the courtroom in addition to the judge was counsel for the Commonwealth, respondent’s counsel, and respondent’s mother. The respondent and the Commonwealth’s expert, Mario Dennis, Ph.D., a clinical psychologist and Director of Forensic Services at the Center, appeared by video from the Center. At one point, the video feed was lost at both locations, but the hearing was suspended for a short time while the connection was reestablished. The respondent objected during the hearing and on appeal, arguing that the video conference violated his statutory rights in Virginia Code § 37.2-901 to be represented by counsel, to be present during the hearing, and to present evidence and to cross-examine witnesses. Although he could ask to speak in confidence with his attorney, he also argued that is ability to consult and interact with his counsel during the hearing was stifled, thus violating his due process right to counsel. The record did not reflect, however, that the respondent or his counsel actually indicated they wished to confer at any point during the proceeding.

The Supreme Court first held that there was no statutory violation. The statutes granting the respondent’s rights, including the right to counsel, and authorizing the use of video conferencing were both plain on their face, were not clearly ambiguous, and did not conflict with one another. The respondent demonstrated no prejudice in appearing by video conference and the statute permitting its use “whenever practicable” was a matter committed to the court’s sound discretion. The respondent’s mere objection to the video conference did not render its use “impracticable,” and as such, was a matter left to the court’s sound discretion.

Turning to the constitutional issue, the Court applied the Fourth Circuit’s decision in United States v. Baker, 45 F.3d 837 (4th Cir. 1995), in which that Court upheld the use of videoconferencing in the context of competency commitment hearings. The Court found that the goal of both processes is to test the opinions of experts. Whereas in a criminal trial the demeanor of the defendant and witnesses is a major concern, decisions to commit for competency restoration or as an SVP are both based not so much on the demeanor of the witnesses, but on the qualifications of the experts and the substance and thoroughness of their opinions. The Court then found that “the purpose of the annual assessment hearing is to determine whether, in light of the treatment received in the preceding year, the respondent remains a sexually violent predator and, if so, whether there is a less restrictive alternative to secure inpatient treatment.” The Court therefore held that the use of video conferencing in this context is neither unconstitutional on its face nor as applied in this case.

Found in DMHL Volume 32 Issue 1

Virginia Court of Appeals Finds No Right to Jury Trial on Involuntary Medication Petition; Appeal Moot on Sufficiency of Evidence Issue

William Scott Ingram v. Commonwealth, 2013 Va. App. LEXIS 131 (April 23, 2013)
slip opinion at:

The Virginia Court of Appeals found no right to trial by jury on a hospital psychiatrist’s petition under Virginia Code § 37.2-1101 to involuntarily medicate an individual found not guilty by reason of insanity. The Court of Appeals also held that the appellant’s claim that forced medication violated his basic beliefs was moot because the circuit court’s 180-day order expired shortly before the Court heard his appeal. The Court, however, found the issue of his right to a jury trial was not moot because it was “subject to repetition, yet evading review.” The Court then proceeded to decide this issue on the merits finding no right to trial by jury under the United States and Virginia Constitutions or Virginia statutory law.

Ingram was found not guilty of malicious wounding by reason of insanity (“NGRI”) in the Martinsville Circuit Court in 1995 and has been periodically recommitted in accordance with Virginia law to various state psychiatric facilities, most recently Southern Virginia Mental Health Institute in Danville. Ingram has been diagnosed with various psychiatric conditions, including bipolar type schizoaffective disorder, narcissistic and antisocial personality disorder, and poly-substance dependence. When his father no longer agreed to serve as his son’s authorized representative for the purpose of making treatment decisions on his behalf, his psychiatrist first petitioned the Danville General District Court in 2009 for an order to involuntarily treat him with anti-psychotic medication pursuant to Virginia Code § 37.2-1101, which the court granted. Ingram appealed to the circuit court arguing in a de novo hearing that, among other things, the evidence was insufficient as a matter of law because the order violated his religious beliefs. On further appeal, the Court of Appeals dismissed the case as moot because the 180-day order had expired before the appeal was heard. Ingram v. Commonwealth, 2010 Va. App. LEXIS 254 (June 22, 2010)(unpublished), slip opn. at:

In 2012, Ingram’s psychiatrist again petitioned for involuntary court-ordered treatment. The general district court granted the petition and Ingram appealed to the circuit court demanding a trial by jury. Ingram also argued that the involuntary medication violated his religious beliefs or basic values. Unlike the previous appeal in which Ingram testified that medication violated his long-standing religious beliefs, he now states that he plays in a rock band, which is “sort of like a religion to [him].” The circuit court denied the request for a jury, conducted a de novo evidentiary hearing, and granted the petition. That 180-day order again expired before the appeal was heard. Under Virginia law, § 37.2-1102(3), an order authorizing treatment with anti-psychotic medication cannot exceed 180 days.

The Commonwealth moved to dismiss the appeal on the grounds of mootness. Relying on Chafin v. Chafin, 133 S.Ct. 1017, 1018 (2013), the Court of Appeals stated that a case becomes moot when the issue presented is no longer live, or “when the dispute is no longer embedded in actual controversy about the plaintiffs’ particular legal rights.” Already; LLC v. Nike, Inc., 133 S.Ct. 721, 726 (2013). Courts do not issue advisory opinions and will review such cases in very limited circumstances and only when the underlying controversy is capable of repetition, yet evading review. Va. State Police v. Elliott, 48 Va. App. 551, 554, 633 S.E.2d 203, 204 (2006). Such review should occur rarely and only in cases that are “short-lived by nature,” Daily Press, Inc. v. Commonwealth, 285 Va. 447, 452, __S.E.2d__(2013), and then only when the party seeking review can demonstrate that he will be subjected to the same illegal conduct.

In this case, the Court of Appeals found that Ingram’s claim that involuntary medication violated his personal beliefs and basic values was fact-based and challenged the sufficiency of the evidence. His claim in this case differed from the factual basis of his previous claim. Because the Court had no confidence that the fact pattern would remain the same, it declined to find that the claim met the capable of repetition, yet evading review doctrine.

On the right to jury trial issue, however, the Court found that Ingram, having been found NGRI nearly twenty years earlier, would likely be the subject of future treatment petitions, each of which could raise the same jury issue, but never be decided. The Court found that this claim presents a question of law unaffected by the facts underlying any given petition. Because the jury trial issue presents an exceptional situation that is capable of repetition, yet evading review, the Court proceeded to decide the issue.

On the merits, the Court of Appeals noted that neither the United States nor Virginia Constitutions afford the right to trial by jury. Although the Fourteenth Amendment guarantees the right to due process before deprivation of a liberty interest, here the right to avoid unwarranted medication, it does not include the right to trial by jury. Relying on Washington v. Harper, 494 U.S. 210, 228 (1990), the Court found that a proceeding to order involuntary medication does not even require a judicial decision maker. The Court also found that although the Sixth Amendment guarantees a jury trial in all criminal prosecutions that could result in imprisonment for longer than six months, this proceeding is not criminal, but civil, and could not result in any incarceration. Further, although the Seventh Amendment also guarantees a right to trial by jury in suits at common law where more than $20 is in dispute, this right has never been applied to state court proceedings.

Under the Virginia Constitution, the Court found that the right to a jury trial applies only to proceedings for which the right to a jury trial existed when the Constitution was adopted. In this case, the statutory scheme was enacted well after the adoption of the Constitution and bears none of the indicia of a traditional common law proceeding. It does not attempt to affect the property rights of a patient or place him in the indeterminate custody of the state. “Instead, Code § 37.2-1101 represents a uniquely modern application of the parens patriae duty of the state to protect those ‘incapable of making an informed decision’ by attempting to ameliorate their illnesses in a manner consistent with the needs of society balanced with the deeply held religious or basic values of the individual.” Ingram v. Commonwealth, slip opn. at 9.

Finally, Ingram argues that Virginia Code § 8.01-336(D) affords him the right to trial by jury because his claim that the treatment is contrary to his religious beliefs and basic values which constitutes a plea in equity. Subsection D provides: “In any action in which a plea has been filed to an equitable claim, and the allegations of such plea are denied by the plaintiff, either party may have the issue tried by jury.” The Court reasons that this claim is not a plea in equity because such a plea is a discrete form of defensive pleading that does not address the merits of a case. Instead this plea raises a single set of facts that would be an absolute defense to a claim, such as the statute of limitations, res judicata, a release, or infancy. In this case, Ingram bears the burden of proving that the treatment is contrary to his religious beliefs or basic values. If he proves this, the burden then shifts to the Commonwealth to prove that the treatment is “necessary to prevent death or a serious irreversible condition.” The Court of Appeals held that this situation is different from the traditional plea in equity raising “a single state of facts or circumstances” and therefore the circuit court was not required to empanel a jury to decide the issue.

Found in DMHL Volume 32 Issue 2

Virginia Supreme Court Holds Commitment Criteria Must Be Met at Time of Appeal; Case Not Moot Due to Loss of Firearms Right

Paugh v. Commonwealth, 286 Va. 85, 743 S.E.3d. 277 (2013)

The Virginia Supreme Court ruled on June 6, 2013, that Virginia Code § 37.2-821 requires a circuit court to determine whether an individual who is appealing the commitment decision of a general district court judge or special justice meets the commitment criteria on the date the circuit court conducts the de novo hearing.44 For the first time, the Supreme Court also held that, because the circuit court allowed the initial commitment order to remain intact, the individual was still subject to the collateral consequences of the order and the case was therefore not moot.

In most prior cases appealed to the Supreme Court, the Court has dismissed the appeal as moot because the commitment order appealed from, which lasts only 30 days in the case of an initial commitment and 180 days for continued commitments, has long since expired before it considers the case.46 Although the majority opinion did not so explicitly state, the collateral consequence argued by Paugh and alluded to in Justice William Mims concurring opinion and Justice Elizabeth McClanahan’s opinion concurring in part and dissenting in part, is an individual’s Second Amendment right to possess a firearm. In their separate opinions, Justice Mims and Justice McClanahan wrote that the proper procedure to challenge the validity of the underlying commitment decision is through a petition filed under Virginia Code § 37.2-846(A), a post-discharge process available to a person who has been committed but is no longer in custody,47 and not Code § 37.2-821, the statute that authorizes an appeal. Justice Mims then invited the General Assembly to clarify the process.

Facts and Procedural History

On March 19, 2012, a Henrico County Magistrate issued a temporary detention order (“TDO”) for Michael Paugh. The next day, March 20, 2012, a special justice involuntarily committed Paugh for a period of up to 30 days. The day after he was discharged, but within the 10-day time frame specified in the statute, Paugh appealed his commitment to the Henrico County Circuit Court under Virginia Code § 37.2-821. Although the statute requires that an appeal be given priority over all other pending matters, including criminal cases, the circuit court did not hear the case until May 18, 2012.

Over his objection, the circuit court admitted Paugh’s pre-admission screening report into evidence. The report contained information provided by Henrico police that they had obtained from a friend of Paugh’s indicating her belief that Paugh was suicidal and possessed guns.48 Paugh also argued that the circuit court should make a de novo determination as to whether he met the commitment criteria as of the date of the circuit court hearing, not as of the date of his admission under the TDO. The Commonwealth advised the court that because Paugh had been discharged, he no longer met the commitment criteria and it was not seeking his further hospitalization or commitment. The court ruled, however, that “common sense” required the court to conduct a de novo appeal of whether Paugh should have been admitted on the date the TDO was executed. After hearing the evidence, the circuit court determined that Paugh met the commitment criteria on the date of his temporary detention and denied his appeal.

On appeal, the Virginia Supreme Court reviewed whether the circuit court should evaluate the evidence as of the 1) date of admission, 2) the date of the hearing conducted by the general district court or special justice, or 3) the date of the de novo hearing in the circuit court. The Court relied on the principle of statutory construction that if the words of a statute are clear and unambiguous it need not look further than the plain meaning of the statute itself. It held therefore that “the day that the de novo hearing is conducted is the proper date on which to consider whether the individual should be committed.” Section 37.2-821(B) provides:

The appeal shall be heard de novo in accordance with the provisions set forth in §§ 37.2-802, 37.2-804, 37.2-804.1, 37.2-804.2, and 37.2-805, and (i) § 37.2-806 or (ii) 37.2-814 through 37.2-819, except that the court in its discretion may rely upon the evaluation report in the commitment hearing from which the appeal is taken instead of requiring a new evaluation pursuant to § 37.2-815. Any order of the circuit court shall not extend the period of involuntary admission or mandatory outpatient treatment set forth in the order appealed from. An order continuing the involuntary admission shall be entered only if the criteria in § 37.2-817 are met at the time the appeal is heard. (Emphasis added.)

The Court stated that this interpretation is further supported by the provision permitting the circuit court to order a new evaluation report rather than relying upon the previous one prepared at the time of the original commitment hearing.

As to the proper relief to be granted, the Court’s majority then found that a de novo hearing constitutes a statutory grant of a new trial and annuls the judgment of the district court as completely as if there had been no previous trial. The Court then determined that the case was before the circuit court on the petition for involuntary commitment. Because the Commonwealth conceded that Paugh had been discharged from his commitment and no longer met the criteria, the proper outcome therefore was to dismiss the petition for involuntary commitment. As a result, the original commitment order became a nullity.

The Supreme Court’s decision would have been straightforward had not Justice Mims filed a concurring opinion, and Justice McClanahan filed an opinion concurring in part and dissenting in part.

Justice Mims’ Opinion

Justice Mims reluctantly concurred in the result of this case, but only because he believed the circuit court, and hence the majority of the Supreme Court, incorrectly applied § 37.2-821 to this case, but the Commonwealth failed to object in the circuit court or to assign cross error. Justice Mims strongly agreed with the majority of the Court that this case was not moot because collateral consequences of constitutional magnitude were at stake for Paugh. In particular, he referenced in his footnote 2 that the particular consequence aggrieving Paugh was the effect of the initial commitment order which denied him the right to possess a firearm under Virginia Code § 18.2-308.1:3(A).

However, because his commitment order had expired and he no longer met the commitment criteria at the time of the circuit court de novo hearing, Justice Mims wrote that § 37.2-821 was not the proper process for Paugh to challenge his commitment in the general district court and the loss of his firearms rights. Section 37.2-821 should therefore be available only when the person remains involuntarily committed or, if no longer committed, remains subject to an involuntary commitment order.

Instead, Justice Mims wrote that an individual in Paugh’s situation can only challenge the collateral consequences resulting from his original commitment order by filing a separate action under § 37.2-846(A).49 That section provides that in cases in which an individual is not confined in a facility or institution, “the person may file his petition in the circuit court of the county or city in which he resides or in which he was found to have a mental illness or in which an order was entered authorizing his continued involuntary inpatient treatment pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of this title.” Had Paugh followed this process, Justice Mims then determined that the proper inquiry before the circuit court and this Court should have been whether Paugh’s commitment was according to the law on the day the order was entered rather than on the day of the hearing as contemplated by Code § 37.2-821. He then invited the legislature to take action to clarify the law: “To the extent this predicament resulted from the statutory scheme’s failure to anticipate that a Code § 37.2-821 hearing could occur long after a commitment had ended and the concomitant commitment order had expired, the General Assembly may wish to consider clarifying the interrelationship between Code §§ 37.2- 821 and 37.2-846(A).”

Justice McClanahan’s Opinion

Justice McClanahan, in her opinion concurring in part and dissenting in part, agreed with Justice Mims that Paugh erroneously filed an appeal under § 37.2-821 rather than utilizing the post-release procedure available under § 37.2-846(A) to challenge the validity of his underlying commitment. She agreed with the majority’s decision and Justice Mims that § 37.2-821 requires a determination as to whether the individual meets the commitment criteria at the time of the de novo circuit court decision, but disagreed with the remedy that the petition for involuntary commitment must be dismissed. Justice McClanahan wrote that the expedited appeal is established for the limited purpose of providing an opportunity to the individual to obtain his release if the evidence does not demonstrate he met the criteria for commitment at the time of the appeal. Because § 37.2-821(B) specifically states that the circuit court may enter “[a]n order continuing the involuntary admission only if the commitment criteria are met at the time the appeal is heard,” she concluded that such a finding does not mean that the initial commitment order was invalid. The remedy is therefore not dismissal of the petition for involuntary commitment.

Justice McClanahan recognized the practical effect of the majority’s opinion that every individual who has been involuntarily committed and appeals that commitment under § 37.2-821 but has already been discharged before the de novo hearing is held, or otherwise no longer meets the commitment criteria, will have his prohibition from purchasing, possessing or transporting a firearm negated. From arguments presented by Paugh in this appeal, avoidance of the firearms prohibition was his primary objective. Justice McClanahan wrote that “[a] more reasonable construction and application of this statutory scheme is that a successful 821 appeal terminates the effectiveness of the petition for involuntary commitment and accompanying commitment order, but does not result in its outright dismissal. Code § 37.2-846 would then provide the procedural avenue for challenging the validity of the underlying petition and commitment order.”

Unlike the majority and Justice Mims, Justice McClanahan would also have found the case pending before the circuit court moot based on her reasoning above because Paugh had already been released when he filed the appeal under § 37.2-821 and the circuit court could not have granted the relief he requested under that statute.


In spite of the well-reasoned concurring and dissenting opinions, the majority opinion controls. Individuals who have been involuntarily committed, but have been discharged, otherwise no longer meet commitment criteria, or whose 30-day commitment order has simply expired, may negate the collateral effects of the commitment order, such as their right to possess a firearm, simply by filing an appeal of their commitment order under § 37.2-821 within the 10-day time period. The Commonwealth will not be able to present evidence denying them relief.

Since the tragedy at Virginia Tech and the General Assembly’s mandate enacted in 2008 under Virginia Code § 37.2-819, general district court clerks have diligently provided certification of an individual’s commitment to the CCRE. Although circuit court clerk’s are also required to provide such information to the CCRE, there is no similar mandate that the circuit court clerk report that an individual’s commitment order has been negated. As a practical matter, it is therefore not clear whether clerks of court will automatically notify the state police to remove the individual’s name from the Central Criminal Records Exchange (“CCRE”), the state’s firearms registry, and that it will then be removed from the National Instant Criminal Background Check System (“NICS”), when an individual’s appeal succeeds in the circuit court. As Justice McClanahan pointed out, it is also not clear that the General Assembly intended such a result. The General Assembly may want to clarify the interrelationship between §§ 37.2- 821 and 37.2-846 and their effect on an individual’s right to possess a firearm at the next or in future sessions, as Justice Mims has invited.

Found in DMHL Volume 32 Issue 3

Sexually Violent Predators

Burden of proof on Commonwealth to prove in annual review hearing that continued involuntary confinement necessary

Gibson v. Com., 287 Va. 311, 756 S.E.2d 460 (2014)

Overruling Commonwealth v. Bell, 282 Va. 308, 714 S.E.2d 562 (2011), the Supreme Court of Virginia held that the Commonwealth is the party who bears the burden of proving that no suitable, less restrictive alternative to involuntary inpatient treatment exists for someone declared to be a sexually violent predator. After a jury found that the defendant, Donald Gibson, was a sexually violent predator within the meaning of Va. Code Ann. § 37.2-900, the circuit court continued the trial in order to hear additional evidence related to Gibson’s suitability for conditional release as an alternative to involuntary commitment.

In moving forward, Gibson argued that the burden was on the Commonwealth to prove “by clear and convincing evidence” that the elements of Va. Code Ann. § 37.2-912 were not satisfied, whereas the Commonwealth, relying on Commonwealth v. Bell, argued that burden was on Gibson to prove “by a preponderance of the evidence that he meets the criteria for conditional release.”

The Virginia Supreme Court noted that statements in Commonwealth v. Bell seemed to conflict with the earlier decision McCloud v. Com., 269 Va. 242, 261, 609 S.E.2d 16, 26 (2005) which held that “the burden of proving that there is no suitable less restrictive alternative to involuntary confinement rests with the Commonwealth, and that burden cannot be shifted to the [respondent].” Finding no reason “to draw a distinction between an initial sexually violent predator trial and an annual review hearing in terms of which party bears the burden of proof on the issue whether there are no suitable less restrictive alternatives to involuntary confinement,” the Supreme Court of Virginia overruled Bell and returned to the rule in McCloud instead of reconciling the two by drawing such a distinction.

Found in DMHL Volume 34 Issue 1

Competency to Stand Trial

No error in trial court’s determination of defendant’s “present” ability to understand the proceedings and assist counsel, including denial of motion for a second hearing based on “new evidence”

Dang v. Com., 287 Va. 132, 752 S.E.2d 885 cert. denied sub nom. Dang v. Virginia, 135 S. Ct. 130, 190 L. Ed. 2d 99 (2014)

On appeal from his conviction for murder and violation of a protective order, petitioner Lam Dang argued that the circuit court erred in failing to order a second competency evaluation after his counsel uncovered new evidence concerning head trauma he suffered as a child. In his first competency evaluation, Dang was found competent to stand trial and seemed particularly focused on providing “his side of the story” and repeatedly had to be constantly redirected to the question posed. Dang’s evaluator noted that he exhibited a high degree of situational anxiety, but that it was not indicative of a mental illness relevant to competency but was “consistent with most defendants who face legal charges.”

Four days prior to his trial, Dang’s counsel moved for a second competency evaluation based on evidence he had recently uncovered that, beginning at age six and continuing until sixth or seventh grade, Dang had been subject to repeated physical assaults that included being pelted in the head with rocks. The circuit court denied the motion, finding no probable cause that Dang “lack[ed] substantial capacity to understand the proceedings against him or to assist his attorney in his own defense.”

The Supreme Court of Virginia upheld the Court of Appeals’ denial of Dang’s petition. The Supreme Court found that the circuit court had given adequate weight to the new information acquired by defense counsel and had focused on the proper issue at hand— Dang’s “present ability to understand the proceedings and assist his counsel.” Given the first evaluator’s opinion that Dang’s shifting focus was representative of “situational anxiety” and the “wide latitude” offered to circuit courts in light of their “first-hand interactions with, and observations of, the defendant and the attorneys at bar” the Supreme Court of Virginia found that the circuit court did not abuse its discretion in denying the request for a second evaluation.

Found in DMHL Volume 34 Issue 1


Trial court complied with statutory criteria for ordering inpatient hospitalization vs. conditional release of NGI acquittee

Bates v. Com., 287 Va. 58, 752 S.E.2d 846 (2014)

After being found not guilty by reason of insanity on a charge of arson pursuant to Va. Code Ann. § 18.2-77, Tanisha Bates was remanded to the temporary custody of the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services (the “Commissioner”) in order to evaluate options for her treatment or release. The clinical psychologist who performed the evaluation recommended inpatient hospitalization whereas the psychiatrist recommended conditional release coupled with outpatient treatment. The Northern Virginia Mental Health Institute (“NVMHI”) then prepared a court-ordered conditional release plan in advance of hearing “to determine the appropriate disposition of the acquittee” in accordance with Va. Code Ann. §§ 19.2– 182.3 and 19.2–182.7. At the request of the Commissioner, the Forensic Review Panel also submitted a report, concluding that “Bates' continued delusions, risk of suicide, lack of substantial response to treatment, and history of deadly and dangerous behavior” all supported a recommendation that Bates should remain committed to inpatient hospitalization. The circuit court followed that recommendation and entered an order committing Bates to the custody of the Commissioner.

Bates appealed the order, contending that the circuit court misapplied the relevant Virginia Code sections in reaching the decision that she required inpatient hospitalization. The Virginia Supreme Court affirmed the commitment order of the court below, holding that it had correctly applied the statutory criteria. Although the court below had acknowledged that the NVMHI report stated that Bates was “ready to leave” inpatient treatment, the finding that there was “no means for controlling her on an outpatient basis” was enough to warrant an order committing Bates to inpatient hospitalization. Further, the Supreme Court held that the provisions in Va. Code Ann. § 19.2–182.7 do not require lower courts to “fashion an appropriate plan for [] outpatient treatment and supervision when it [has] already determined that [a defendant] [is] not eligible for conditional release, and that she require[s] inpatient hospitalization.”

Found in DMHL Volume 34 Issue 1

Sex Offender; Probation Violation

Zebbs v. Com., 785 S.E.2d 493 (Va. Ct. App. 2016)

A defendant whose probation requirements necessitate a sex offender program may be held in violation of his probation when he refuses to abide by a central requirement of the program, namely admitting to the misconduct for which he was convicted. Defendant who entered an Alford plea is treated as if he entered a guilty plea after conviction; therefore, an admission of guilt to the crimes he was charged with does not invoke Fifth Amendment protection.

Background: Defendant Zebbs entered an Alford plea, pleading guilty to forcible sodomy, among two other charges. An Alford plea is treated the same as a guilty plea after the defendant is tried and convicted. Zebbs was required to successfully complete a sex offender treatment program to satisfy the terms of his probation, among other terms. Admitting to the offense for which the offender received probation is a mandatory part of the program. Zebbs refused to admit to his misconduct, arguing that it was a violation of his Fifth Amendment right to require him to verbally incriminate himself and punish him for not doing so. The circuit court found Zebbs in violation of his probation, and he subsequently appealed.

Holding: A valid Fifth Amendment claim must include an admission that may carry the risk of incrimination and a substantial penalty for not giving the incriminating testimony. There was no risk of incrimination here because the misconduct Zebbs was required to admit to had already been litigated and thus an admission after the fact would not give rise to incrimination. Double jeopardy would bar the prosecution of Zebbs for admitting to misconduct for which he had been tried and convicted. Therefore, the Fifth Amendment did not protect Zebbs from cooperating with the sex offender treatment terms and the circuit court did not err in finding that he violated his probation by not completing the treatment.

Found in DMHL Volume 35, Issue 2

Sexual Abuse and Psychological Injury; Statute of Limitations

Haynes v. Haggerty, 784 S.E.2d 293 (Va. 2016)

For cases where the childhood sexual abuse occurred before October 1977, the two-year statute of limitations for civil action seeking damages starts when the victim reaches majority. As of October 1977, the two-year statute of limitations starts to run either after the victim has attained majority or after the victim has been advised by a licensed physician or psychologist that the person has an injury caused by the prior abuse.

Background: Nancy Haynes alleged that Sean Haggerty had a sexual relationship with her between the years of 1971 and 1975, while she was a minor. Haynes reached majority in March of 1975. In October 1977, Virginia Code Section 8.01-249(6) was passed, which dictated that causes of action based on childhood sexual abuse accrue when the fact of the injury and its causal connection to the abuse is first communicated to the victim by a licensed physician, psychologist, or clinical psychologist. This statute specifically noted that victimizations that occurred before the passing of this statute would be dictated by the former statute, which stated that causes of action based on childhood sexual abuse accrue upon reaching majority. In May of 2012, Haynes was diagnosed by her therapist with Dysthymic Disorder, which the therapist said was a result of Haggerty sexually abusing her when she was a minor. Haynes brought suit against Haggerty seeking damages for sexual assault and battery.

The circuit court held that the statute of limitations applicable in 1975 had expired before the passage of 8.01-249(6) and thus its application to this case would deprive Haggerty of due process and property right to a statute of limitations defense. Also, the court concluded that Haynes’ extremely protracted failure to act though being fully aware of Haggerty’s sexual misconduct would egregiously undermine Haggerty’s constitutional rights to due process. Haynes appealed the decision.

Holding: The Supreme Court held that Haynes’ causes of actions were dictated by the preceding statute, which stated that the statute of limitations governing the claims would be tolled until the alleged victim reached majority. 8.01-249(6) therefore did not apply to Haynes’ claim and the circuit court did not err in granting Haggerty’s plea in bar.

Found in DMHL Volume 35, Issue 2

Liability of Correctional and Mental Health Officials

Glasgow v. Nebraska, 819 F.3d 436 (8th Cir. 2016)

Correctional and mental health officials do not owe a duty to third parties for injuries inflicted by inmates who are returned to the community following assessment by those officials. 

Background: Nikko Jenkins was a mentally ill inmate who was released from prison after 10.5 years of his sentence because the state changed Jenkins’ recommendation from inpatient to outpatient treatment, which accelerated his release. Upon his release, Jenkins killed 4 people in Omaha, one of them Curtis Bradford. Bradford’s mother, Velita Glasgow, filed suit against the state of Nebraska, among other defendants, for violation of Bradford’s substantive due process rights under the Fourteenth Amendment (§1983) and a state law negligence claim, arguing that the state acted with deliberate indifference in accelerating a dangerous prisoner’s release and violated Bradford’s right to life. Additionally, she argued that the state had a duty to protect Bradford from their prisoners and the state abandoned that duty when they knowingly released a mentally-ill prisoner who allegedly threatened to kill someone if he was released. The district court dismissed Glasgow’s claim, stating that the complaint was “devoid of any plausible allegation against [the] defendants.” Glasgow appealed.

Holding: The Eighth Circuit affirmed the lower court’s dismissal of all claims. An official may be sued if they violated a statutory or constitutional right that was “clearly established” at the time of the conduct. The Eighth Circuit held that “there is no general substantive due process right to be protected against the release of criminals from confinement.” Furthermore, because there was no evidence that the state’s conduct created a significant risk to a precisely defined group of people and that, if that group existed, Bradford was a part of that group, the state was not required by the Due Process clause to protect Bradford’s life from private actors. The court quickly did away with the negligence claim by holding that the plaintiff did not provide any legal authority to explain that the state had a legal duty to Bradford.

Found in DMHL Volume 35, Issue 2

Involuntary Commitment of Sexually Violent Predators

Commonwealth v. Proffitt, 792 S.E.2d 3 (Va. 2016)

Supreme Court of Virginia holds that in an action to involuntarily commit a convicted rapist as a sexually violent predator testimony by victims of sexual assault committed by the defendant is relevant and corroborative of the evaluation of the defendant and is not unfairly prejudicial, and the trial court’s exclusion of such victim testimony is reversible error.

Background: The Commonwealth of Virginia initiated proceedings to involuntarily commit Brady Arnold Proffitt, Jr. as a sexually violent predator under the Sexually Violent Predator Act (SVPA). A clinical psychologist evaluated Proffitt and diagnosed him with sexual sadism disorder, antisocial personality disorder, and alcohol use disorder. She gave testimony during the trial that Proffitt was a sexually violent predator and at risk of reoffending if released without treatment. The Commonwealth then attempted to call two of Proffitt’s rape victims as witnesses. Proffitt objected to the testimony as unfairly prejudicial because his rape conviction was already in evidence. The circuit court agreed and excluded the testimony.

Holding: The Supreme Court of Virginia ruled that the victim testimony was not unfairly prejudicial because the testimony would directly support the elements of the case that Proffitt met the statutory definition of a sexually violent predator.

Notable Point:

Rules of Evidence: The court conceded that the rules of evidence prohibit the introduction of evidence to prove that a defendant acted in conformity with a character trait. However, in the present case the material issue was whether Proffitt had a mental abnormality or personality disorder making him likely to engage in sexually violent acts in the future. The court explained that this made it proper to introduce evidence of specific conduct to prove the existence of a character trait that was a required element of the case.

Found in DMHL Volume 35, Issue 4