A youth in foster care suffering a mental health crisis waited for more than four days under police custody in a South Richmond hospital for treatment in a state psychiatric hospital that never provided her a bed, according to a lawsuit filed against Virginia’s behavioral health agency and the state’s only mental hospital for youth.
The Giles County Department of Social Services filed suit on Feb. 28 against the Department of Behavioral Health and Developmental Services and the Commonwealth Center for Children & Adolescents. It alleges that the state violated the so-called “bed of last resort” law adopted in 2014 to ensure that state psychiatric institutions would admit patients found to pose a threat to themselves or others.
“The department’s failures and refusals to carry out its duties under state law have created a mental health crisis ... and endangered the public by submitting members of the public to behaviors of respondents caused by their untreated mental health issues,” the suit states.
The lawsuit comes as Virginia’s behavioral health system has struggled to overcome a crisis caused by overcrowding, partly as a result of the 2014 law, and worsened by the COVID-19 pandemic and a severe shortage of direct-care staff in state institutions.
Last summer, then-Commissioner of Behavioral Health Alison Land temporarily halted admissions at five state mental institutions because of overcrowding and lack of staffing to safely accept more patients.
Lauren Cunningham, spokesperson for the department, would not comment on pending litigation, but said, “We can say that as public and private hospitals alike are still reeling from staffing shortages and COVID-19-related bed closures,” the Department of Behavioral Health and Developmental Services “has been working with partners statewide to ensure continuity of services to the fullest extent they can be delivered in both community and inpatient settings.”
The Commonwealth Center, in Staunton, has been at the heart of the crisis because it lacks enough staff to safely operate all of its 48 beds. The hospital currently is filling just 18 beds because it lacks staff to safely admit more patients.
Staunton’s Commonwealth Center for Children & Adolescents is the only state mental hospital for children.
Currently, only 37 of the 94 direct service aide jobs are filled at the center, a vacancy rate of 61%. All five jobs for licensed practical nurses are vacant, and so are 10 of the 20 positions for registered nurses.
“The Commonwealth Center has been under an incredible amount of stress the last year and a half,” said Sen. Creigh Deeds, D-Bath, chair of the state Behavioral Health Commission.
Deeds said he could not comment on the lawsuit because he had not seen it or been made aware of it before he was contacted by the Richmond Times-Dispatch on Wednesday.
But he is well aware of the stakes for people seeking emergency psychiatric treatment because of his own family tragedy, which led to the adoption of the last resort law.
His 24-year-old son, Gus, repeatedly stabbed the senator and then killed himself at their Bath County home on Nov. 19, 2013, less than 13 hours after being released from emergency custody because the regional mental health agency failed to find a bed for his treatment in a psychiatric facility.
The incident led the General Assembly to adopt a package of legislation the following year that included a guarantee that no one would be turned away from a state psychiatric facility for involuntary emergency treatment if they met the requirements for a temporary detention order. A magistrate may issue a TDO, as it’s called, if the person is a threat to themselves or others, or unable to care for themselves.
But the unintended consequence of the law was a dramatic increase in TDO admissions to state hospitals, as private psychiatric hospitals accepted a smaller proportion of those cases, especially if the patients are aggressive.
State lawmakers have struggled with a solution that would ease pressure on overcrowded and understaffed state hospitals without “streeting” people in psychiatric crisis by failing to provide treatment before releasing them.
That is what the Giles lawsuit alleges the state did to S.E., identified only by her initials and gender. The youth, who had been living in a residential facility in Chesterfield County because of behavioral issues, was placed under a temporary detention order for involuntary treatment just after 2 a.m. on Feb. 21.
A Chesterfield County police officer transported the youth to Tucker Pavilion, a private psychiatric facility adjoining HCA Chippenham Hospital in South Richmond. After the facility cleared the youth for any medical issues, it sought to admit her to the Commonwealth Center, which refused because it had no bed available, the lawsuit alleges.
“As a result of the Center’s failure and refusal to provide the services required by law, S.E. suffered a mental health crisis without any care, other than supervision by the Chesterfield County police officer, and was held in the Chippenham Hospital emergency room for the entire duration of the order,” the suit states.
The lawsuit alleges that the Commonwealth Center agreed almost four days later, just before the 96-hour order had expired, to provide a bed on the following morning.
But the next day, “once the order expired, they wouldn’t take her,” said Giles County Attorney Richard Chidester, who filed the suit against the state on behalf of the local social services agency.
Instead, the suit said the state requested that Giles social services workers drive across the state that afternoon to pick up the youth and return her to Giles “without the child receiving any mental health treatment.”
Chidester said the youth is receiving mental health treatment, but he would not say where.
He said he found it “surprising” that the youth could “sit there for four days” and not get mental health treatment, but he understands the challenge at the Commonwealth Center.
“It’s not a matter of they don’t want to do it,” Chidester said. “They don’t have the staff.”
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Staunton’s Commonwealth Center for Children & Adolescents is the only state mental hospital for children.
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