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2003 SESSION
Be it enacted by the General Assembly of Virginia:
1. That § 37.1-134.21 of the Code of Virginia, as it is currently effective and as it shall become effective, is amended and reenacted as follows:
§ 37.1-134.21. (Effective until January 1, 2004) Judicial authorization of provision, withholding or withdrawal of treatment and detention of certain persons.
A. An appropriate circuit court, or judge as defined in § 37.1-1, may authorize on behalf of an adult person, in accordance with this section, the provision, withholding or withdrawal of a specific treatment or course of treatment for a mental or physical disorder, 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 action is in the best interest of the person.
B. For purposes of this section:
"Disorder" includes any physical or mental disorder or impairment, whether caused by injury, disease, genetics, or other cause.
"Incapable of making an informed decision" means unable to understand the nature, extent or probable consequences of a proposed treatment, or unable to make a rational evaluation of the risks and benefits of the proposed treatment as compared with the risks and benefits of alternatives to that treatment. Persons with dysphasia or other communication disorders who are mentally competent and able to communicate shall not be considered incapable of giving informed consent.
C. Any person may request authorization of the provision, withholding or withdrawal of a specific treatment, or course of treatment, for an adult person by filing a petition in the circuit court, or with a judge as defined in § 37.1-1, of the county or city in which the allegedly incapable person resides or is located, or in the county or city in which the proposed place of treatment is located. Upon filing such a petition, the petitioner or the court shall deliver or send a certified copy of the petition to the person who is the subject of such petition and, if the identity and whereabouts of the person's next of kin are known, to the next of kin.
D. As soon as reasonably possible after the filing of the petition, the court shall appoint an attorney to represent the interests of the allegedly incapable person at the hearing. However, such 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 allegedly incapable person is indigent, his counsel shall be paid by the Commonwealth as provided in § 37.1-89 from funds appropriated to reimburse expenses incurred in the involuntary mental commitment process. However, this provision shall not be construed to prohibit the direct payment of an attorney's fee either by the patient or by an interested person on his behalf, which fee shall be subject to the review and approval of the court.
E. Following the appointment of an attorney pursuant to subsection D above, the court shall schedule an expedited hearing of the matter. The court shall notify the person who is the subject of the petition, his next of kin, if known, the petitioner, and their respective counsel of the date and time for the hearing. In scheduling such a 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's attorney with sufficient time to adequately prepare his client's case.
F. Notwithstanding the provisions of subsections C and E above regarding delivery or service of the petition and notice of the hearing to the next of kin of any person who is the subject of such petition, if such person is a patient in any hospital at the time the petition is filed, the court, in its discretion, may dispense with the requirement of any notice to the next of kin. This subsection shall not, however, be construed to interfere with any decision made pursuant to the Health Care Decisions Act (§ 54.1-2981 et seq.).
G. Evidence presented at the hearing may be submitted by affidavit in the absence of objection by the person who is the subject of the petition, the petitioner, either of their respective counsel, or by any other interested party. 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's religious beliefs and basic values and the views and preferences of the person's next of kin.
H. Prior to authorizing the provision, withholding or withdrawal of treatment pursuant to this section, the court shall find:
1. That there is no legally authorized person available to give consent;
2. That the person who is the subject of the petition is incapable either of making an informed decision regarding a specific treatment or course of 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 course of treatment is in the best interest of the patient. However, the court shall not authorize a proposed course of treatment which is proven by a preponderance of the evidence to be contrary to the person's religious beliefs or basic values unless such 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.
I. The court may not authorize the following under this section:
1. Nontherapeutic sterilization, abortion, or psychosurgery.
2. Admission to a mental retardation facility or a psychiatric hospital, as defined in § 37.1-1. However, the court may issue an order under this section authorizing the provision, withholding or withdrawal of a specific treatment or course of treatment of a person whose admission to such facility has been or is simultaneously being authorized under §§ 37.1-65, 37.1-65.1, 37.1-65.2, 37.1-65.3, or § 37.1-67.1, or of a person who is subject to an order of involuntary commitment previously or simultaneously issued under § 37.1-67.3.
3. Administration of antipsychotic medication for a period to exceed 180 days
or electroconvulsive therapy for a period to exceed sixty 60 days pursuant to
any petition filed under this section. The court may authorize electroconvulsive therapy only if it
is demonstrated by clear and convincing evidence, which shall include the testimony of a licensed
psychiatrist, that all other reasonable forms of treatment have been considered
and that electroconvulsive therapy is the most effective treatment for the
person. Even if the court has authorized administration of antipsychotic
medication or electroconvulsive therapy hereunder, these treatments may be
administered over the person's objection only if he is subject to an order of
involuntary commitment, including outpatient involuntary commitment, previously
or simultaneously issued under § 37.1-67.3 or the provisions of Chapter 11 (§
19.2-167 et seq.) or Chapter 11.1 (§ 19.2-182.2 et seq.) of Title 19.2.
4. Restraint or transportation of the person, unless it finds upon clear and convincing evidence that restraint or transportation is necessary to the provision of an authorized treatment for a physical disorder.
J. Any order authorizing the provision, withholding or withdrawal of treatment
pursuant to subsection A shall describe any treatment or course of 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. 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 thirty 30 days. Such order shall
require the treating physician or other service provider to report to the court and the person's
attorney any change in the person's condition resulting in probable restoration
or development of the person's capacity to make and to communicate an informed
decision prior to completion of any authorized course of treatment and related
services. The order may further require the treating physician or other service
provider to report to the court and the person's attorney any change in
circumstances regarding any authorized course of treatment or related services
or the withholding or withdrawal of treatment or services which may indicate
that such authorization is no longer in the person's best interests. Upon
receipt of such report, or upon the petition of any interested party, 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 shall be subsequently executed.
K. Any order hereunder of a judge, or of a judge or magistrate under subsection
M, may be appealed de novo within ten 10 days to the circuit court for the
jurisdiction where the order was entered, and any such order of a circuit court
hereunder, either originally or on appeal, may be appealed within ten 10 days
to the Court of Appeals.
L. Any licensed health professional or licensed hospital providing, withholding or withdrawing treatment, testing or detention 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 such claim is based on lack of consent to such course of treatment, testing or detention or the withholding or withdrawal of such treatment, testing or detention. Any such professional or hospital providing, withholding or withdrawing treatment with the consent of the person receiving or being offered 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 treatment, and such denial was based on an affirmative finding that the person was capable of making and communicating an informed decision regarding the proposed provision, withholding or withdrawal of treatment.
M. Based upon the opinion of a licensed physician that an adult person is incapable of making an informed decision as a result of a physical injury or illness and that the medical standard of care indicates that testing, observation and treatment are necessary to prevent imminent and irreversible harm, a magistrate may issue, for good cause shown, an emergency custody order for such adult person to be taken into custody and transported to a hospital emergency room for such testing, observation or treatment.
Prior to issuance of an emergency custody order pursuant to this subsection, the magistrate shall ascertain that there is no legally authorized person available to give consent to necessary treatment for the adult person and that the adult person (i) is incapable of making an informed decision regarding obtaining necessary treatment, (ii) has refused transport to obtain such necessary treatment, (iii) has indicated an intention to resist such transport, and (iv) is unlikely to become capable of making an informed decision regarding obtaining necessary treatment within the time required for such decision.
An opinion by the licensed physician that an adult person is incapable of making an informed decision as a result of physical injury or illness shall only be rendered after such licensed physician has communicated electronically or personally with the emergency medical services personnel on the scene and has attempted to communicate electronically or personally with the adult person to obtain information and medical data concerning the cause of the adult person's incapacity, has attempted to obtain consent from the adult person and has failed to obtain such consent.
If there is a change in the person's condition, the emergency medical services personnel shall contact the licensed physician. If at any time the licensed physician determines that a person subject to an order under this subsection has become capable of making and communicating an informed decision, such physician shall rely on the person's decision on whether to consent to further observation, testing or treatment.
Upon reaching the emergency room, the person shall be evaluated by a licensed physician. If the physician determines that the person meets the requirements of subsection N, the physician may apply for a temporary detention order pursuant to that subsection. If the physician determines that the person does not meet the requirements of subsection N, the person shall be released from custody immediately. The person shall remain in custody until this evaluation is performed, but in no event shall the period of custody under this subsection exceed four hours.
The law-enforcement officer may lawfully go to or be sent beyond the territorial limits of the county, city or town in which he serves to any point in the Commonwealth for the purpose of executing an order for emergency custody pursuant to this subsection. Nothing herein shall preclude a law-enforcement officer from obtaining emergency medical treatment or further medical evaluation at any time for a person in his custody as provided in this subsection.
If an order of emergency custody is not executed within four hours of its issuance, the order shall be void and shall be returned unexecuted to the office of the clerk of the issuing court or, if such office is not open, to any judge or magistrate thereof.
N. Upon the advice of a licensed physician who has attempted to obtain consent
and upon a finding of probable cause to believe that an adult person within the
court's or a magistrate's jurisdiction is incapable of making an informed
decision regarding treatment of a physical or mental disorder, or is incapable
of communicating such a decision due to a physical or mental disorder, and that
the medical standard of care calls for testing, observation or treatment of the
disorder within the next twenty-four 24 hours to prevent death, disability, or
a serious irreversible condition, the court or, if the court is unavailable, a
magistrate may issue an order authorizing temporary detention of the person by
a hospital emergency room or other appropriate facility and authorizing such
testing, observation or treatment. The detention may not be for a period
exceeding twenty-four 24 hours unless extended by the court as part of an order
authorizing treatment under subsection A. If before completion of authorized testing, observation or
treatment, the physician determines that a person subject to an order under
this subsection has become capable of making and communicating an informed
decision, the physician shall rely on the person's decision on whether to
consent to further observation, testing or treatment. If before issuance of an
order under this subsection or during its period of effectiveness, the
physician learns of an objection by a member of the person's immediate family
to the testing, observation or treatment, he shall so notify the court or
magistrate, who shall consider the objection in determining whether to issue,
modify or terminate the order.
N O. The provisions of § 37.1-89 relating to payment by the Commonwealth shall
not apply to the cost of detention, testing or treatment under this section.
O P. Nothing in this section shall be deemed to affect the right to use, and
the authority conferred by, any other applicable statutory or regulatory procedure relating to
consent, or to diminish any common law authority of a physician or other treatment provider to
provide, withhold or withdraw services to a person unable to give or to
communicate informed consent to those actions, with or without the consent of
the person's relative, including but not limited to common law or other
authority to provide treatment in an emergency situation; nor shall anything in
this section be construed to affect the law defining the conditions under which
consent shall be obtained for medical treatment, or the nature of the consent
required.
P Q. Judicial authorization pursuant to this section for providing, withholding
or withdrawing treatment need not be obtained for a person for whom consent or authorization has been
granted or issued or may be obtained in accordance with the provisions of
Article 8 (§ 54.1-2981 et seq.) of Chapter 29 of Title 54.1. or other
applicable statutes or common law of this Commonwealth.
§ 37.1-134.21. (Effective January 1, 2004) Judicial authorization of treatment and detention of certain persons.
A. An appropriate circuit court, or judge as defined in § 37.1-1, may authorize on behalf of an adult person, in accordance with this section, the provision, withholding or withdrawal of a specific treatment or course of treatment for a mental or physical disorder, 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 action is in the best interest of the person.
B. For purposes of this section:
"Disorder" includes any physical or mental disorder or impairment, whether caused by injury, disease, genetics, or other cause.
"Incapable of making an informed decision" means unable to understand the nature, extent or probable consequences of a proposed treatment, or unable to make a rational evaluation of the risks and benefits of the proposed treatment as compared with the risks and benefits of alternatives to that treatment. Persons with dysphasia or other communication disorders who are mentally competent and able to communicate shall not be considered incapable of giving informed consent.
C. Any person may request authorization of the provision, withholding or withdrawal of a specific treatment, or course of treatment, for an adult person by filing a petition in the circuit court, or with a judge as defined in § 37.1-1, of the county or city in which the allegedly incapable person resides or is located, or in the county or city in which the proposed place of treatment is located. Upon filing such a petition, the petitioner or the court shall deliver or send a certified copy of the petition to the person who is the subject of such petition and, if the identity and whereabouts of the person's next of kin are known, to the next of kin.
D. As soon as reasonably possible after the filing of the petition, the court shall appoint an attorney to represent the interests of the allegedly incapable person at the hearing. However, such 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 allegedly incapable person is indigent, his counsel shall be paid by the Commonwealth as provided in § 37.1-89 from funds appropriated to reimburse expenses incurred in the involuntary mental commitment process. However, this provision shall not be construed to prohibit the direct payment of an attorney's fee either by the patient, or by an interested person on his behalf, which fee shall be subject to the review and approval of the court.
E. Following the appointment of an attorney pursuant to subsection D above, the court shall schedule an expedited hearing of the matter. The court shall notify the person who is the subject of the petition, his next of kin, if known, the petitioner, and their respective counsel of the date and time for the hearing. In scheduling such a 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's attorney with sufficient time to adequately prepare his client's case.
F. Notwithstanding the provisions of subsections C and E above regarding delivery or service of the petition and notice of the hearing to the next of kin of any person who is the subject of such petition, if such person is a patient in any hospital at the time the petition is filed, the court, in its discretion, may dispense with the requirement of any notice to the next of kin. This subsection shall not, however, be construed to interfere with any decision made pursuant to the Health Care Decisions Act (§ 54.1-2981 et seq.).
G. Evidence presented at the hearing may be submitted by affidavit in the absence of objection by the person who is the subject of the petition, the petitioner, either of their respective counsel, or by any other interested party. 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's religious beliefs and basic values and the views and preferences of the person's next of kin.
H. Prior to authorizing the provision, withholding or withdrawal of treatment pursuant to this section, the court shall find:
1. That there is no legally authorized person available to give consent;
2. That the person who is the subject of the petition is incapable either of making an informed decision regarding a specific treatment or course of 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 course of treatment is in the best interest of the patient. However, the court shall not authorize a proposed course of treatment which is proven by a preponderance of the evidence to be contrary to the person's religious beliefs or basic values unless such 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.
I. The court may not authorize the following under this section:
1. Nontherapeutic sterilization, abortion, or psychosurgery.
2. Admission to a mental retardation facility or a psychiatric hospital, as defined in § 37.1-1. However, the court may issue an order under this section authorizing the provision, withholding or withdrawal of a specific treatment or course of treatment of a person whose admission to such facility has been or is simultaneously being authorized under §§ 37.1-65, 37.1-65.1, 37.1-65.2, 37.1-65.3, or § 37.1-67.1, or of a person who is subject to an order of involuntary commitment previously or simultaneously issued under § 37.1-67.3 or Article 1.1 (§ 37.1-70.1 et seq.) of Chapter 2 of this title.
3. Administration of antipsychotic medication for a period to exceed 180 days
or electroconvulsive therapy for a period to exceed sixty 60 days pursuant to
any petition filed under this section. The court may authorize
electroconvulsive therapy only if it is demonstrated by clear and convincing
evidence, which shall include the testimony of a licensed psychiatrist, that
all other reasonable forms of treatment have been considered and that
electroconvulsive therapy is the most effective treatment for the person. Even
if the court has authorized administration of antipsychotic medication or
electroconvulsive therapy hereunder, these treatments may be administered over
the person's objection only if he is subject to an order of involuntary
commitment, including outpatient involuntary commitment, previously or
simultaneously issued under § 37.1-67.3 or Article 1.1 (§ 37.1-70.1 et seq.) of
Chapter 2 of this title, or the provisions of Chapter 11 (§ 19.2-167 et seq.)
or Chapter 11.1 (§ 19.2-182.2 et seq.) of Title 19.2.
4. Restraint or transportation of the person, unless it finds upon clear and convincing evidence that restraint or transportation is necessary to the provision of an authorized treatment for a physical disorder.
J. Any order authorizing the provision, withholding or withdrawal of treatment
pursuant to subsection A shall describe any treatment or course of 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. 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 thirty 30 days. Such order shall
require the treating physician or other service provider to report to the court and the person's
attorney any change in the person's condition resulting in probable restoration
or development of the person's capacity to make and to communicate an informed
decision prior to completion of any authorized course of treatment and related
services. The order may further require the treating physician or other service
provider to report to the court and the person's attorney any change in
circumstances regarding any authorized course of treatment or related services
or the withholding or withdrawal of treatment or services which may indicate
that such authorization is no longer in the person's best interests. Upon
receipt of such report, or upon the petition of any interested party, 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 shall be subsequently executed.
K. Any order hereunder of a judge, or of a judge or magistrate under subsection
M, may be appealed de novo within ten 10 days to the circuit court for the
jurisdiction where the order was entered, and any such order of a circuit court
hereunder, either originally or on appeal, may be appealed within ten 10 days
to the Court of Appeals.
L. Any licensed health professional or licensed hospital providing, withholding or withdrawing treatment, testing or detention 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 such claim is based on lack of consent to such course of treatment, testing or detention or the withholding or withdrawal of such treatment, testing or detention. Any such professional or hospital providing, withholding or withdrawing treatment with the consent of the person receiving or being offered 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 treatment, and such denial was based on an affirmative finding that the person was capable of making and communicating an informed decision regarding the proposed provision, withholding or withdrawal of treatment.
M. Based upon the opinion of a licensed physician that an adult person is incapable of making an informed decision as a result of a physical injury or illness and that the medical standard of care indicates that testing, observation and treatment are necessary to prevent imminent and irreversible harm, a magistrate may issue, for good cause shown, an emergency custody order for such adult person to be taken into custody and transported to a hospital emergency room for such testing, observation or treatment.
Prior to issuance of an emergency custody order pursuant to this subsection, the magistrate shall ascertain that there is no legally authorized person available to give consent to necessary treatment for the adult person and that the adult person (i) is incapable of making an informed decision regarding obtaining necessary treatment, (ii) has refused transport to obtain such necessary treatment, (iii) has indicated an intention to resist such transport, and (iv) is unlikely to become capable of making an informed decision regarding obtaining necessary treatment within the time required for such decision.
An opinion by the licensed physician that an adult person is incapable of making an informed decision as a result of physical injury or illness shall only be rendered after such licensed physician has communicated electronically or personally with the emergency medical services personnel on the scene and has attempted to communicate electronically or personally with the adult person to obtain information and medical data concerning the cause of the adult person's incapacity, has attempted to obtain consent from the adult person and has failed to obtain such consent.
If there is a change in the person's condition, the emergency medical services personnel shall contact the licensed physician. If at any time the licensed physician determines that a person subject to an order under this subsection has become capable of making and communicating an informed decision, such physician shall rely on the person's decision on whether to consent to further observation, testing or treatment.
Upon reaching the emergency room, the person shall be evaluated by a licensed physician. If the physician determines that the person meets the requirements of subsection N, the physician may apply for a temporary detention order pursuant to that subsection. If the physician determines that the person does not meet the requirements of subsection N, the person shall be released from custody immediately. The person shall remain in custody until this evaluation is performed, but in no event shall the period of custody under this subsection exceed four hours.
The law-enforcement officer may lawfully go to or be sent beyond the territorial limits of the county, city or town in which he serves to any point in the Commonwealth for the purpose of executing an order for emergency custody pursuant to this subsection. Nothing herein shall preclude a law-enforcement officer from obtaining emergency medical treatment or further medical evaluation at any time for a person in his custody as provided in this subsection.
If an order of emergency custody is not executed within four hours of its issuance, the order shall be void and shall be returned unexecuted to the office of the clerk of the issuing court or, if such office is not open, to any judge or magistrate thereof.
N. Upon the advice of a licensed physician who has attempted to obtain consent
and upon a finding of probable cause to believe that an adult person within the court's or
a magistrate's jurisdiction is incapable of making an informed decision regarding
treatment of a physical or mental disorder, or is incapable of communicating
such a decision due to a physical or mental disorder, and that the medical
standard of care calls for testing, observation or treatment of the disorder
within the next twenty-four 24 hours to prevent death, disability, or a serious
irreversible condition, the court or, if the court is unavailable, a magistrate
may issue an order authorizing temporary detention of the person by a hospital
emergency room or other appropriate facility and authorizing such testing,
observation or treatment. The detention may not be for a period exceeding
twenty-four 24 hours unless extended by the court as part of an order
authorizing treatment under subsection A. If before completion of authorized testing,
observation or treatment, the physician determines that a person subject to an
order under this subsection has become capable of making and communicating an
informed decision, the physician shall rely on the person's decision on whether
to consent to further observation, testing or treatment. If before issuance of
an order under this subsection or during its period of effectiveness, the
physician learns of an objection by a member of the person's immediate family
to the testing, observation or treatment, he shall so notify the court or
magistrate, who shall consider the objection in determining whether to issue,
modify or terminate the order.
N O. The provisions of § 37.1-89 relating to payment by the Commonwealth shall
not apply to the cost of detention, testing or treatment under this section.
O P. Nothing in this section shall be deemed to affect the right to use, and
the authority conferred by, any other applicable statutory or regulatory procedure relating to
consent, or to diminish any common law authority of a physician or other treatment provider to
provide, withhold or withdraw services to a person unable to give or to
communicate informed consent to those actions, with or without the consent of
the person's relative, including but not limited to common law or other
authority to provide treatment in an emergency situation; nor shall anything in
this section be construed to affect the law defining the conditions under which
consent shall be obtained for medical treatment, or the nature of the consent
required.
P Q. Judicial authorization pursuant to this section for providing, withholding
or withdrawing treatment need not be obtained for a person for whom consent or authorization has been
granted or issued or may be obtained in accordance with the provisions of
Article 8 (§ 54.1-2981 et seq.) of Chapter 29 of Title 54.1 or other applicable
statutes or common law of this Commonwealth.