                                 CODE OF VIRGINIA

JUDICIAL AUTHORIZATION OF TREATMENT (§ 37.2-1101)

A. An appropriate circuit court or district court judge or special justice may
authorize treatment for a mental or physical disorder on behalf of an adult
person, in accordance with this section, if it finds upon clear and convincing
evidence that (i) the person is either incapable of making an informed decision
on his own behalf or is incapable of communicating such a decision due to a
physical or mental disorder and (ii) the proposed treatment is in the best
interest of the person.

B. Any person may request authorization of treatment for an adult person by
filing a petition in the circuit court or district court or with a special
justice of the county or city in which the person for whom treatment is sought
resides or is located or in the county or city in which the proposed place of
treatment is located. Upon filing the petition, the petitioner or the court
shall deliver or send a certified copy of the petition to the person for whom
treatment is sought and, if the identity and whereabouts of the person&#8217;s
next of kin are known, to the next of kin.

C. As soon as reasonably possible after the filing of the petition, the court
shall appoint an attorney to represent the interests of the person for whom
treatment is sought at the hearing. However, the appointment shall not be
required in the event that the person or another interested person on behalf of
the person elects to retain private counsel at his own expense to represent the
interests of the person at the hearing. If the person for whom treatment is
sought is indigent, his counsel shall be paid by the Commonwealth as provided in
&#xA7; 37.2-804 from funds appropriated to reimburse expenses incurred in the
involuntary admission process. However, this provision shall not be construed to
prohibit the direct payment of an attorney&#8217;s fee by the person or an
interested person on his behalf, which fee shall be subject to the review and
approval of the court.

D. Following the appointment of an attorney pursuant to subsection C, the court
shall schedule an expedited hearing of the matter. The court shall notify the
person for whom treatment is sought, his next of kin, if known, the petitioner,
and their respective counsel of the date and time for the hearing. In scheduling
the hearing, the court shall take into account the type and severity of the
alleged physical or mental disorder, as well as the need to provide the
person&#8217;s attorney with sufficient time to adequately prepare his
client&#8217;s case.

E. Notwithstanding the provisions of subsections B and D regarding delivery or
service of the petition and notice of the hearing to the next of kin of any
person for whom consent to treatment is sought, if the person is a patient in
any hospital, including a hospital licensed by the Department of Health pursuant
to &#xA7; 32.1-123 or an individual receiving services in any facility operated
by the Department of Behavioral Health and Developmental Services and such
person has no known guardian or legally authorized representative, at the time
the petition is filed, the court may dispense with the requirement of any notice
to the next of kin. If treatment is necessary to prevent imminent or
irreversible harm, the court in its discretion may dispense with the requirement
of providing notice. This subsection shall not be construed to interfere with
any decision made pursuant to the Health Care Decisions Act (&#xA7; 54.1-2981 et
seq.).

F. Prior to the hearing, the attorney shall investigate the risks and benefits
of the treatment decision for which authorization is sought and of alternatives
to the proposed decision. The attorney shall make a reasonable effort to inform
the person of this information and to ascertain the person&#8217;s religious
beliefs and basic values and the views and preferences of the person&#8217;s
next of kin. A health care provider shall disclose or make available to the
attorney, upon request, any information, records, and reports concerning the
person that the attorney determines necessary to perform his duties under this
section. Evidence presented at the hearing may be submitted by affidavit in the
absence of objection by the person for whom treatment is sought, the petitioner,
either of their respective counsel, or by any other interested party.

G. Prior to authorizing treatment pursuant to this section, the court shall
find:

   1. That there is no available person with legal authority under Article 8
   (&#xA7; 54.1-2981 et seq.) of Chapter 29 of Title 54.1, under the regulations
   promulgated pursuant to &#xA7; 37.2-400, or under other applicable law to
   authorize the proposed treatment. A person who would have legal authority to
   authorize the proposed treatment shall be deemed to be unavailable if such
   person (i) cannot be contacted within a reasonable period of time in light of
   the immediacy of the need for treatment for the person for whom treatment is
   sought, (ii) is incapable of making an informed decision, or (iii) is unable
   or unwilling to make a decision regarding authorization of the proposed
   treatment or to serve as the legally authorized representative of the person
   for whom treatment is sought;

   2. That the person for whom treatment is sought is incapable of making an
   informed decision regarding treatment or is physically or mentally incapable
   of communicating such a decision;

   3. That the person who is the subject of the petition is unlikely to become
   capable of making an informed decision or of communicating an informed
   decision within the time required for decision; and

   4. That the proposed treatment is in the best interest of the person and is
   medically and ethically appropriate with respect to (i) the medical diagnosis
   and prognosis and (ii) any other information provided by the attending
   physician of the person for whom treatment is sought. However, the court shall
   not authorize a proposed treatment that is contrary to the provisions of an
   advance directive executed by the person pursuant to &#xA7; 54.1-2983 or is
   proven by a preponderance of the evidence to be contrary to the person&#8217;s
   religious beliefs or basic values or to specific preferences stated by the
   person before becoming incapable of making an informed decision, unless the
   treatment is necessary to prevent death or a serious irreversible condition.
   The court shall take into consideration the right of the person to rely on
   nonmedical, remedial treatment in the practice of religion in lieu of medical
   treatment.

H. Any order authorizing treatment pursuant to subsection A shall describe any
treatment authorized and may authorize generally such related examinations,
tests, or services as the court may determine to be reasonably related to the
treatment authorized. Treatment authorized by such order may include palliative
care as defined in &#xA7; 32.1-162.1, if appropriate. The order shall require
the treating physician to review and document the appropriateness of the
continued administration of antipsychotic medications not less frequently than
every 30 days. The order shall require the treating physician or other service
provider to report to the court and the person&#8217;s attorney any change in
the person&#8217;s condition resulting in probable restoration or development of
the person&#8217;s capacity to make and to communicate an informed decision
prior to completion of any authorized treatment and related services. The order
may further require the treating physician or other service provider to report
to the court and the person&#8217;s attorney any change in circumstances
regarding any authorized treatment or related services that may indicate that
such authorization is no longer in the person&#8217;s best interests. Upon
receipt of such report or upon the petition of any interested party, the court
may enter an 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 shall be subsequently executed.

I. Nothing in this section shall be construed to limit the authority of a
treating physician or other service provider to administer treatment without
judicial authorization when necessary to stabilize the condition of the person
for whom treatment is sought in an emergency.

HISTORY: 1997, c. 921, § 37.1-134.21; 1999, cc. 814, 946, 985; 2003, c. 790;
2004, cc. 66, 104, 1014; 2005, cc. 716, 751; 2009, cc. 813, 840; 2012, cc. 115,
378, 476, 507.