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Developed and maintained by the Division of Legislative Automated Systems.
2005 SESSION
050214772Be 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 treatment for a mental or physical disorder 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 treatment 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 the 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.
"Treatment" includes the provision, withholding, or withdrawal of a specific treatment or course of treatment upon a showing that the requirements of subsection H have been met.
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 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 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 for whom treatment is sought 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 for whom treatment is
sought 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 attorneys'
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
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 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 treatment is sought, if such person is a patient in any
hospital as defined in § 32.1-123 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 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
for whom treatment is sought, 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 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
for whom treatment is sought 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 and is medically and ethically appropriate according
to the medical diagnosis and prognosis and any other information provided by
the attending physician of the person for whom treatment is sought.
However, the court shall not authorize a proposed 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 administration 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. 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 administering treatment, or
providing 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 administering
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 administer treatment 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 administering treatment, or
the nature of the consent required.
Q. Judicial authorization for treatment 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 the Commonwealth.