                                 CODE OF VIRGINIA

MEDICAL AND MENTAL HEALTH TREATMENT OF PRISONERS INCAPABLE OF GIVING CONSENT (§
53.1-133.04)

A. The sheriff or administrator in charge of a local or regional correctional
facility or his designee may petition the circuit court or any district court
judge or any special justice, as defined in &#xA7; 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 confined in the local or regional
correctional facility. Upon filing the petition, the petitioner or the court
shall serve 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 person&#8217;s next of kin. The court shall authorize such
treatment in a facility designated by the sheriff or administrator 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;
that the prisoner does not have a relevant advanced directive, guardian, or
other substitute decision maker; that the proposed treatment is in the best
interests of the prisoner; and that the jail has sufficient medical and nursing
resources available to safely administer the treatment and respond to any
adverse side effects that might arise from the treatment. The facility
designated for treatment by the sheriff or administrator may be located within a
local or regional correctional facility if such facility is licensed to provide
the treatment authorized by the court order.

B. Prior to the court&#8217;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&#8217;s condition and proposed treatment,
which evidence may, in the court&#8217;s discretion and in the absence of
objection by the prisoner or the prisoner&#8217;s attorney, be submitted by
affidavit.

C. 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&#8217;s attorney any change in the prisoner&#8217;s condition
resulting in restoration of the prisoner&#8217;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 that a written order is
subsequently executed.

D. Prior to authorizing treatment pursuant to this section, the court shall find
that there is no available person with legal authority under the Health Care
Decisions Act (&#xA7; 54.1-2981 et seq.) or under other applicable law to
authorize the proposed treatment.

E. 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.

F. 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.

G. 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.

H. Any licensed health or mental health professional or licensed facility
providing services pursuant to the court&#8217;s or magistrate&#8217;s
authorization as provided in this section shall have no liability arising out of
a claim to the extent that it is based on lack of consent to such services,
except with respect to injury or death resulting from gross negligence or
willful and wanton misconduct. 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 that it is based on lack of
capacity to consent, except with respect to injury or death resulting from gross
negligence or willful and wanton misconduct, 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.

I. 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.

HISTORY: 2019, c. 809.