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2005 SESSION
056601772Be it enacted by the General Assembly of Virginia:
1. That § 37.1-134.21 of the Code of Virginia is amended and reenacted as follows:
§ 37.1-134.21. 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 specific treatment or
course of treatment is in the best interest of the person.
B. For purposes of this section:
"Course of treatment" may include a specific treatment or the withholding or withdrawal of a specific treatment upon a showing that (i) such withholding or withdrawal is consistent with the medical standard of care or (ii) the person has a terminal condition for which the continuation of such treatment would serve only to artificially prolong the dying process.
"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 specific
treatment or course or treatment, or unable to
make a rational evaluation of the risks and benefits of the proposed specific
treatment or course of treatment as compared
with the risks and benefits of alternatives to that the
specific treatment or course of
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 for whom treatment is
sought 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 for whom consent to a
specific treatment or course of treatment is sought, if such
person is a patient in any hospital or a resident in any
facility operated by the Department of Mental Health, Mental Retardation and
Substance Abuse Services and such person has no known guardian or legally
authorized representative 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. If a specific treatment or course of treatment is
necessary to prevent imminent or irreversible harm, the court in its discretion
may dispense with the requirement of any notice. 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. 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.
H. Prior to authorizing the provision,
withholding or withdrawal of a
specific treatment or course of treatment pursuant to this
section, the court shall find:
1. That there is no legally authorized person representative
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 specific treatment or course
of treatment is in the best interest of the patient. However, the court shall
not authorize a proposed specific treatment or course of
treatment which that 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 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 specific treatment or course of treatment for a physical disorder.
J. Any order authorizing the provision,
withholding or withdrawal of a specific treatment
or course of treatment pursuant to subsection A shall describe any
specific
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 specific treatment
or
course of treatment authorized. A specific treatment
or course of treatment authorized by such order may include palliative care as
defined in § 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. 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 N, may be appealed de novo within 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 10 days to the Court of Appeals.
L. Any licensed health professional or licensed hospital
providing, withholding or withdrawing a
specific treatment or course of 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 a
specific treatment or 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 a specific treatment
or course of 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 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 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.
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.
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.
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.