                                 CODE OF VIRGINIA

MEDICAL AND MENTAL HEALTH TREATMENT OF PRISONERS INCAPABLE OF GIVING CONSENT (§
53.1-40.1)

A. The Director 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 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. 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 a written order is subsequently
executed.

D. 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.

E. 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.

F. 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.

G. 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 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. 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: 1988, c. 873; 1997, c. 801; 2005, c. 716; 2016, c. 211.