{"formats":[{"name":"JSON","format":"json","url":"\/downloads\/2025\/code-json\/53.1-40.1.json"},{"name":"Plain Text","format":"text","url":"\/downloads\/2025\/code-text\/53.1-40.1.txt"},{"name":"XML","format":"xml","url":"\/downloads\/2025\/code-xml\/53.1-40.1.xml"},{"name":"HTML","format":"html","url":"\/downloads\/2025\/code-html\/53.1-40.1.html"}],"law_id":60055,"edition_id":1,"section_id":60055,"structure_id":14675,"section_number":"53.1-40.1","catch_line":"Medical and mental health treatment of prisoners incapable of giving consent","history":"1988, c. 873; 1997, c. 801; 2005, c. 716; 2016, c. 211.","full_text":"A\n\nThe Director or his designee may petition the circuit court or any district court judge or any special justice, as defined in § 37.2-100, herein referred to as the court, of the county or city in which the prisoner is located for an order authorizing treatment of a prisoner sentenced and committed to the Department of Corrections. The court shall authorize such treatment in a facility designated by the Director upon finding, on the basis of clear and convincing evidence, that the prisoner is incapable, either mentally or physically, of giving informed consent to such treatment and that the proposed treatment is in the best interests of the prisoner.B\n\nPrior to the court’s authorization of such treatment, the court shall appoint an attorney to represent the interests of the prisoner. Evidence shall be presented concerning the prisoner’s condition and proposed treatment, which evidence may, in the court’s discretion and in the absence of objection by the prisoner or the prisoner’s attorney, be submitted by affidavit.C\n\nAny order authorizing treatment pursuant to subsection A shall describe the treatment authorized and authorize generally such examinations, tests, medications, and other treatments as are in the best interests of the prisoner but may not authorize nontherapeutic sterilization, abortion, or psychosurgery. Such order shall require the licensed physician, psychiatrist, clinical psychologist, professional counselor, or clinical social worker acting within his area of expertise who is treating the prisoner to report to the court and the prisoner’s attorney any change in the prisoner’s condition resulting in restoration of the prisoner’s capability to consent prior to completion of the authorized treatment and related services. Upon receipt of such report, the court may enter such order withdrawing or modifying its prior authorization as it deems appropriate. Any petition or order under this section may be orally presented or entered, provided a written order is subsequently executed.D\n\nAny order of a judge under subsection A may be appealed de novo within 10 days to the circuit court for the jurisdiction where the prisoner is located, and any order of a circuit court hereunder, either originally or on appeal, may be appealed within 10 days to the Court of Appeals, which shall give such appeal priority and hear the appeal as soon as possible.E\n\nWhenever the director of any hospital or facility reasonably believes that treatment is necessary to protect the life, health, or safety of a prisoner, such treatment may be given during the period allowed for any appeal unless prohibited by order of a court of record wherein the appeal is pending.F\n\nUpon the advice of a licensed physician, psychiatrist, or clinical psychologist acting within his area of expertise who has attempted to obtain consent and upon a finding of probable cause to believe that a prisoner is incapable, due to any physical or mental condition, of giving informed consent to treatment and that the medical standard of care calls for testing, observation, or other treatment within the next 12 hours to prevent death, disability or a serious irreversible condition, the court or, if the court is unavailable, a magistrate shall issue an order authorizing temporary admission of the prisoner to a hospital or other health care facility and authorizing such testing, observation, or other treatment. Such order shall expire after a period of 12 hours unless extended by the court as part of an order authorizing treatment under subsection A.G\n\nAny licensed health or mental health professional or licensed facility providing services pursuant to the court’s or magistrate’s authorization as provided in this section shall have no liability arising out of a claim to the extent it is based on lack of consent to such services. Any such professional or facility providing services with the consent of the prisoner receiving treatment shall have no liability arising out of a claim to the extent it is based on lack of capacity to consent if a court or a magistrate has denied a petition hereunder to authorize such services, and such denial was based on an affirmative finding that the prisoner was capable of making an informed decision regarding the proposed services.H\n\nNothing in this section shall be deemed to limit or repeal any common law rule relating to consent for medical treatment or the right to apply or the authority conferred by any other applicable statute or regulation relating to consent.","order_by":null,"text":{"0":{"id":219803,"text":"The Director or his designee may petition the circuit court or any district court judge or any special justice, as defined in § 37.2-100, herein referred to as the court, of the county or city in which the prisoner is located for an order authorizing treatment of a prisoner sentenced and committed to the Department of Corrections. The court shall authorize such treatment in a facility designated by the Director upon finding, on the basis of clear and convincing evidence, that the prisoner is incapable, either mentally or physically, of giving informed consent to such treatment and that the proposed treatment is in the best interests of the prisoner.","type":"section","prefixes":["A"],"prefix":"A","entire_prefix":"A","prefix_anchor":"A","level":1,"next_prefix":"B"},"1":{"id":219804,"text":"Prior to the court’s authorization of such treatment, the court shall appoint an attorney to represent the interests of the prisoner. Evidence shall be presented concerning the prisoner’s condition and proposed treatment, which evidence may, in the court’s discretion and in the absence of objection by the prisoner or the prisoner’s attorney, be submitted by affidavit.","type":"section","prefixes":["B"],"prefix":"B","entire_prefix":"B","prefix_anchor":"B","level":1,"prior_prefix":"A","next_prefix":"C"},"2":{"id":219805,"text":"Any order authorizing treatment pursuant to subsection A shall describe the treatment authorized and authorize generally such examinations, tests, medications, and other treatments as are in the best interests of the prisoner but may not authorize nontherapeutic sterilization, abortion, or psychosurgery. Such order shall require the licensed physician, psychiatrist, clinical psychologist, professional counselor, or clinical social worker acting within his area of expertise who is treating the prisoner to report to the court and the prisoner’s attorney any change in the prisoner’s condition resulting in restoration of the prisoner’s capability to consent prior to completion of the authorized treatment and related services. Upon receipt of such report, the court may enter such order withdrawing or modifying its prior authorization as it deems appropriate. Any petition or order under this section may be orally presented or entered, provided a written order is subsequently executed.","type":"section","prefixes":["C"],"prefix":"C","entire_prefix":"C","prefix_anchor":"C","level":1,"prior_prefix":"B","next_prefix":"D"},"3":{"id":219806,"text":"Any order of a judge under subsection A may be appealed de novo within 10 days to the circuit court for the jurisdiction where the prisoner is located, and any order of a circuit court hereunder, either originally or on appeal, may be appealed within 10 days to the Court of Appeals, which shall give such appeal priority and hear the appeal as soon as possible.","type":"section","prefixes":["D"],"prefix":"D","entire_prefix":"D","prefix_anchor":"D","level":1,"prior_prefix":"C","next_prefix":"E"},"4":{"id":219807,"text":"Whenever the director of any hospital or facility reasonably believes that treatment is necessary to protect the life, health, or safety of a prisoner, such treatment may be given during the period allowed for any appeal unless prohibited by order of a court of record wherein the appeal is pending.","type":"section","prefixes":["E"],"prefix":"E","entire_prefix":"E","prefix_anchor":"E","level":1,"prior_prefix":"D","next_prefix":"F"},"5":{"id":219808,"text":"Upon the advice of a licensed physician, psychiatrist, or clinical psychologist acting within his area of expertise who has attempted to obtain consent and upon a finding of probable cause to believe that a prisoner is incapable, due to any physical or mental condition, of giving informed consent to treatment and that the medical standard of care calls for testing, observation, or other treatment within the next 12 hours to prevent death, disability or a serious irreversible condition, the court or, if the court is unavailable, a magistrate shall issue an order authorizing temporary admission of the prisoner to a hospital or other health care facility and authorizing such testing, observation, or other treatment. Such order shall expire after a period of 12 hours unless extended by the court as part of an order authorizing treatment under subsection A.","type":"section","prefixes":["F"],"prefix":"F","entire_prefix":"F","prefix_anchor":"F","level":1,"prior_prefix":"E","next_prefix":"G"},"6":{"id":219809,"text":"Any licensed health or mental health professional or licensed facility providing services pursuant to the court’s or magistrate’s authorization as provided in this section shall have no liability arising out of a claim to the extent it is based on lack of consent to such services. Any such professional or facility providing services with the consent of the prisoner receiving treatment shall have no liability arising out of a claim to the extent it is based on lack of capacity to consent if a court or a magistrate has denied a petition hereunder to authorize such services, and such denial was based on an affirmative finding that the prisoner was capable of making an informed decision regarding the proposed services.","type":"section","prefixes":["G"],"prefix":"G","entire_prefix":"G","prefix_anchor":"G","level":1,"prior_prefix":"F","next_prefix":"H"},"7":{"id":219810,"text":"Nothing in this section shall be deemed to limit or repeal any common law rule relating to consent for medical treatment or the right to apply or the authority conferred by any other applicable statute or regulation relating to consent.","type":"section","prefixes":["H"],"prefix":"H","entire_prefix":"H","prefix_anchor":"H","level":1,"prior_prefix":"G"}},"ancestry":[{"id":14675,"edition_id":1,"name":"Medical and Mental Health Care; Involuntary Admission and Treatment","identifier":"2.1","label":"article","depth":3,"order_by":1,"parent_id":12718,"metadata":{},"date_created":"2026-06-26 03:49:16","date_modified":"2026-06-26 03:49:16","permalink":{"id":238035,"object_type":"structure","relational_id":14675,"identifier":"2.1","token":"53.1\/2\/2.1","url":"\/53.1\/2\/2.1\/","edition_id":1,"permalink":0,"preferred":1}},{"id":12718,"edition_id":1,"name":"State Correctional Facilities","identifier":"2","label":"chapter","depth":2,"order_by":1,"parent_id":12717,"metadata":{},"date_created":"2026-06-26 03:43:49","date_modified":"2026-06-26 03:43:49","permalink":{"id":237861,"object_type":"structure","relational_id":12718,"identifier":"2","token":"53.1\/2","url":"\/53.1\/2\/","edition_id":1,"permalink":0,"preferred":1}},{"id":12717,"edition_id":1,"name":"Prisons and Other Methods of Correction","identifier":"53.1","label":"title","depth":1,"order_by":1,"parent_id":null,"metadata":{},"date_created":"2026-06-26 03:43:49","date_modified":"2026-06-26 03:43:49","permalink":{"id":237591,"object_type":"structure","relational_id":12717,"identifier":"53.1","token":"53.1","url":"\/53.1\/","edition_id":1,"permalink":0,"preferred":1}}],"structure_contents":[{"id":60055,"structure_id":14675,"section_number":"53.1-40.1","catch_line":"Medical and mental health treatment of prisoners incapable of giving consent","url":"\/53.1-40.1\/","token":"53.1\/2\/2.1\/53.1-40.1","metadata":false},{"id":86134,"structure_id":14675,"section_number":"53.1-40.10","catch_line":"Exchange of medical and mental health information and records","url":"\/53.1-40.10\/","token":"53.1\/2\/2.1\/53.1-40.10","metadata":false},{"id":65505,"structure_id":14675,"section_number":"53.1-40.2","catch_line":"Involuntary admission of prisoners with mental illness","url":"\/53.1-40.2\/","token":"53.1\/2\/2.1\/53.1-40.2","metadata":false},{"id":60963,"structure_id":14675,"section_number":"53.1-40.3","catch_line":"Place of hearing or proceeding","url":"\/53.1-40.3\/","token":"53.1\/2\/2.1\/53.1-40.3","metadata":false},{"id":67532,"structure_id":14675,"section_number":"53.1-40.4","catch_line":"Appeal of order authorizing involuntary admission","url":"\/53.1-40.4\/","token":"53.1\/2\/2.1\/53.1-40.4","metadata":false},{"id":71299,"structure_id":14675,"section_number":"53.1-40.5","catch_line":"Transfer of prisoner involuntarily admitted","url":"\/53.1-40.5\/","token":"53.1\/2\/2.1\/53.1-40.5","metadata":false},{"id":56280,"structure_id":14675,"section_number":"53.1-40.6","catch_line":"Periodic review of prisoner for purposes of retention","url":"\/53.1-40.6\/","token":"53.1\/2\/2.1\/53.1-40.6","metadata":false},{"id":78134,"structure_id":14675,"section_number":"53.1-40.7","catch_line":"Discharge of prisoner involuntarily admitted","url":"\/53.1-40.7\/","token":"53.1\/2\/2.1\/53.1-40.7","metadata":false},{"id":62432,"structure_id":14675,"section_number":"53.1-40.8","catch_line":"Fees and expenses","url":"\/53.1-40.8\/","token":"53.1\/2\/2.1\/53.1-40.8","metadata":false},{"id":86543,"structure_id":14675,"section_number":"53.1-40.9","catch_line":"Civil admission proceeding prior to release","url":"\/53.1-40.9\/","token":"53.1\/2\/2.1\/53.1-40.9","metadata":false}],"next_section":{"id":86134,"structure_id":14675,"section_number":"53.1-40.10","catch_line":"Exchange of medical and mental health information and records","url":"\/53.1-40.10\/","token":"53.1\/2\/2.1\/53.1-40.10","metadata":false},"metadata":false,"official_url":"https:\/\/law.lis.virginia.gov\/vacode\/53.1-40.1\/","history_text":"

This law was first created in 1988. The record of its establishment is cataloged in chapter 873 of that year\u2019s edition of \u201cActs of Assembly,\u201d the annual state publication listing all changes made to the Code of Virginia in that year. Unfortunately, the 1988 \u201cActs\u201d aren\u2019t available online. It has been modified 3 times. Those modifications are cataloged by \u201cThe Acts of Assembly,\u201d a state publication, by year and chapter. Those modifications that can be read on the General Assembly\u2019s website will be linked accordingly. Those modifications are as follows: in 1997, chapter 801<\/a>; in 2005, chapter 716<\/a>; in 2016, chapter 211<\/a>.<\/p>","references":[{"id":86129,"section_number":"17.1-405","catch_line":"Appellate jurisdiction \u2014 Administrative agency, Virginia Workers' Compensation Commission, and civil matter appeals","order_by":null,"url":"\/17.1-405\/"},{"id":63032,"section_number":"17.1-410","catch_line":"Disposition of appeals; finality of decisions","order_by":null,"url":"\/17.1-410\/"},{"id":84291,"section_number":"37.2-803","catch_line":"Special justices to perform duties of judge","order_by":null,"url":"\/37.2-803\/"},{"id":60963,"section_number":"53.1-40.3","catch_line":"Place of hearing or proceeding","order_by":null,"url":"\/53.1-40.3\/"},{"id":62432,"section_number":"53.1-40.8","catch_line":"Fees and expenses","order_by":null,"url":"\/53.1-40.8\/"},{"id":86543,"section_number":"53.1-40.9","catch_line":"Civil admission proceeding prior to release","order_by":null,"url":"\/53.1-40.9\/"}],"refers_to":[{"id":76036,"section_number":"37.2-100","catch_line":"Definitions","order_by":null,"url":"\/37.2-100\/"}],"permalink":{"id":238037,"object_type":"law","relational_id":60055,"identifier":"53.1-40.1","token":"53.1\/2\/2.1\/53.1-40.1","url":"\/53.1-40.1\/","edition_id":1,"permalink":0,"preferred":1},"url":"\/53.1-40.1\/","token":"53.1\/2\/2.1\/53.1-40.1","dublin_core":{"Title":"Medical and mental health treatment of prisoners incapable of giving consent","Type":"Text","Format":"text\/html","Identifier":"\u00a7 53.1-40.1","Relation":"Code of Virginia"},"html":"\n\t\t\t\t\t\t

A.<\/span> The Director<\/span> or his designee may petition<\/span> the circuit<\/span> court<\/span> or any district court<\/span> judge<\/span> or any special justice, as defined in § 37.2-100<\/a>, herein referred to as the court<\/span>, of the county or city in which the prisoner is located for an order<\/span> authorizing treatment of a prisoner sentenced and committed to the Department<\/span> of Corrections. The court<\/span> shall authorize such treatment in a facility designated by the Director<\/span> upon finding<\/span>, on the basis of clear and convincing evidence<\/span>, that the prisoner is incapable, either mentally or physically, of giving informed consent to such treatment and that the proposed treatment is in the best interests of the prisoner. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

B.<\/span> Prior to the court<\/span>’s authorization of such treatment, the court<\/span> shall appoint an attorney to represent the interests of the prisoner. Evidence<\/span> shall be presented concerning the prisoner’s condition and proposed treatment, which evidence<\/span> may, in the court<\/span>’s discretion and in the absence of objection by the prisoner or the prisoner’s attorney, be submitted by affidavit<\/span>. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

C.<\/span> Any order<\/span> authorizing treatment pursuant to subsection A shall describe the treatment authorized and authorize generally such examinations, tests, medications, and other treatments as are in the best interests of the prisoner but may not authorize nontherapeutic sterilization, abortion, or psychosurgery. Such order<\/span> shall require the licensed physician, psychiatrist, clinical psychologist, professional counselor, or clinical social worker acting within his area of expertise who is treating the prisoner to report to the court<\/span> and the prisoner’s attorney any change in the prisoner’s condition resulting in restoration of the prisoner’s capability to consent prior to completion of the authorized treatment and related services. Upon receipt of such report, the court<\/span> may enter such order<\/span> withdrawing or modifying its prior authorization as it deems appropriate. Any petition<\/span> or order<\/span> under this section may be orally presented or entered, provided a written order<\/span> is subsequently executed. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

D.<\/span> Any order<\/span> of a judge<\/span> under subsection A may be appealed de novo<\/span> within 10 days to the circuit<\/span> court<\/span> for the jurisdiction<\/span> where the prisoner is located, and any order<\/span> of a circuit<\/span> court<\/span> hereunder, either originally or on appeal<\/span>, may be appealed within 10 days to the Court<\/span> of Appeals<\/span>, which shall give such appeal<\/span> priority and hear the appeal<\/span> as soon as possible. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

E.<\/span> Whenever the director<\/span> of any hospital or facility reasonably believes that treatment is necessary to protect the life, health, or safety of a prisoner, such treatment may be given during the period allowed for any appeal<\/span> unless prohibited by order<\/span> of a court<\/span> of record wherein the appeal<\/span> is pending. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

F.<\/span> Upon the advice of a licensed physician, psychiatrist, or clinical psychologist acting within his area of expertise who has attempted to obtain consent and upon a finding<\/span> of probable cause<\/span> to believe that a prisoner is incapable, due to any physical or mental condition, of giving informed consent to treatment and that the medical standard of care calls for testing, observation, or other treatment within the next 12 hours to prevent death, disability or a serious irreversible condition, the court<\/span> or, if the court<\/span> is unavailable, a magistrate<\/span> shall issue<\/span> an order<\/span> authorizing temporary admission of the prisoner to a hospital or other health care facility and authorizing such testing, observation, or other treatment. Such order<\/span> shall expire after a period of 12 hours unless extended by the court<\/span> as part of an order<\/span> authorizing treatment under subsection A. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

G.<\/span> Any licensed health or mental health professional or licensed facility providing services pursuant to the court<\/span>’s or magistrate<\/span>’s authorization as provided in this section shall have no liability arising out of a claim to the extent it is based on lack of consent to such services. Any such professional or facility providing services with the consent of the prisoner receiving treatment shall have no liability arising out of a claim to the extent it is based on lack of capacity to consent if a court<\/span> or a magistrate<\/span> has denied a petition<\/span> hereunder to authorize such services, and such denial was based on an affirmative finding<\/span> that the prisoner was capable of making an informed decision regarding the proposed services. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

H.<\/span> Nothing in this section shall be deemed to limit or repeal any common law<\/span> rule relating to consent for medical treatment or the right to apply or the authority conferred by any other applicable statute<\/span> or regulation relating to consent. <\/i><\/a><\/p><\/section>","plain_text":" CODE OF VIRGINIA\n\nMEDICAL AND MENTAL HEALTH TREATMENT OF PRISONERS INCAPABLE OF GIVING CONSENT (\u00a7\n53.1-40.1)\n\nA. The Director or his designee may petition the circuit court or any district\ncourt judge or any special justice, as defined in § 37.2-100, herein\nreferred to as the court, of the county or city in which the prisoner is located\nfor an order authorizing treatment of a prisoner sentenced and committed to the\nDepartment of Corrections. The court shall authorize such treatment in a\nfacility designated by the Director upon finding, on the basis of clear and\nconvincing evidence, that the prisoner is incapable, either mentally or\nphysically, of giving informed consent to such treatment and that the proposed\ntreatment is in the best interests of the prisoner.\n\nB. Prior to the court’s authorization of such treatment, the court shall\nappoint an attorney to represent the interests of the prisoner. Evidence shall\nbe presented concerning the prisoner’s condition and proposed treatment,\nwhich evidence may, in the court’s discretion and in the absence of\nobjection by the prisoner or the prisoner’s attorney, be submitted by\naffidavit.\n\nC. Any order authorizing treatment pursuant to subsection A shall describe the\ntreatment authorized and authorize generally such examinations, tests,\nmedications, and other treatments as are in the best interests of the prisoner\nbut may not authorize nontherapeutic sterilization, abortion, or psychosurgery.\nSuch order shall require the licensed physician, psychiatrist, clinical\npsychologist, professional counselor, or clinical social worker acting within\nhis area of expertise who is treating the prisoner to report to the court and\nthe prisoner’s attorney any change in the prisoner’s condition\nresulting in restoration of the prisoner’s capability to consent prior to\ncompletion of the authorized treatment and related services. Upon receipt of\nsuch report, the court may enter such order withdrawing or modifying its prior\nauthorization as it deems appropriate. Any petition or order under this section\nmay be orally presented or entered, provided a written order is subsequently\nexecuted.\n\nD. Any order of a judge under subsection A may be appealed de novo within 10\ndays to the circuit court for the jurisdiction where the prisoner is located,\nand any order of a circuit court hereunder, either originally or on appeal, may\nbe appealed within 10 days to the Court of Appeals, which shall give such appeal\npriority and hear the appeal as soon as possible.\n\nE. Whenever the director of any hospital or facility reasonably believes that\ntreatment is necessary to protect the life, health, or safety of a prisoner,\nsuch treatment may be given during the period allowed for any appeal unless\nprohibited by order of a court of record wherein the appeal is pending.\n\nF. Upon the advice of a licensed physician, psychiatrist, or clinical\npsychologist acting within his area of expertise who has attempted to obtain\nconsent and upon a finding of probable cause to believe that a prisoner is\nincapable, due to any physical or mental condition, of giving informed consent\nto treatment and that the medical standard of care calls for testing,\nobservation, or other treatment within the next 12 hours to prevent death,\ndisability or a serious irreversible condition, the court or, if the court is\nunavailable, a magistrate shall issue an order authorizing temporary admission\nof the prisoner to a hospital or other health care facility and authorizing such\ntesting, observation, or other treatment. Such order shall expire after a period\nof 12 hours unless extended by the court as part of an order authorizing\ntreatment under subsection A.\n\nG. Any licensed health or mental health professional or licensed facility\nproviding services pursuant to the court’s or magistrate’s\nauthorization as provided in this section shall have no liability arising out of\na claim to the extent it is based on lack of consent to such services. Any such\nprofessional or facility providing services with the consent of the prisoner\nreceiving treatment shall have no liability arising out of a claim to the extent\nit is based on lack of capacity to consent if a court or a magistrate has denied\na petition hereunder to authorize such services, and such denial was based on an\naffirmative finding that the prisoner was capable of making an informed decision\nregarding the proposed services.\n\nH. Nothing in this section shall be deemed to limit or repeal any common law\nrule relating to consent for medical treatment or the right to apply or the\nauthority conferred by any other applicable statute or regulation relating to\nconsent.\n\nHISTORY: 1988, c. 873; 1997, c. 801; 2005, c. 716; 2016, c. 211.","edition":{"id":1,"name":"2025","slug":"2025","date_created":"2026-06-21 22:39:22","date_modified":"2026-06-21 22:39:22","current":1,"order_by":1,"last_import":null}}