§ 53.1-40.1. Medical and mental health treatment of prisoners incapable ofgiving consent.
A. The Director or his designee may petition the circuit court or anydistrict court judge or any special justice, as defined in § 37.2-100, hereinreferred to as the court, of the county or city in which the prisoner islocated for an order authorizing treatment of a prisoner sentenced andcommitted to the Department of Corrections. The court shall authorize suchtreatment in a facility designated by the Director upon finding, on the basisof clear and convincing evidence, that the prisoner is incapable, eithermentally or physically, of giving informed consent to such treatment and thatthe proposed treatment is in the best interests of the prisoner.
B. Prior to the court's authorization of such treatment, the court shallappoint an attorney to represent the interests of the prisoner. Evidenceshall be presented concerning the prisoner's condition and proposedtreatment, which evidence may, in the court's discretion and in the absenceof objection by the prisoner or the prisoner's attorney, be submitted byaffidavit.
C. Any order authorizing treatment pursuant to subsection A shall describethe treatment authorized and authorize generally such examinations, tests,medications, and other treatments as are in the best interests of theprisoner but may not authorize nontherapeutic sterilization, abortion, orpsychosurgery. Such order shall require the licensed physician, psychiatristor clinical psychologist acting within his area of expertise who is treatingthe prisoner to report to the court and the prisoner's attorney any change inthe prisoner's condition resulting in restoration of the prisoner'scapability to consent prior to completion of the authorized treatment andrelated services. Upon receipt of such report, the court may enter such orderwithdrawing or modifying its prior authorization as it deems appropriate. Anypetition 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 10days 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 suchappeal priority and hear the appeal as soon as possible.
E. Whenever the director of any hospital or facility reasonably believes thattreatment is necessary to protect the life, health, or safety of a prisoner,such treatment may be given during the period allowed for any appeal unlessprohibited by order of a court of record wherein the appeal is pending.
F. Upon the advice of a licensed physician, psychiatrist, or clinicalpsychologist acting within his area of expertise who has attempted to obtainconsent and upon a finding of probable cause to believe that a prisoner isincapable, due to any physical or mental condition, of giving informedconsent 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 isunavailable, a magistrate shall issue an order authorizing temporaryadmission of the prisoner to a hospital or other health care facility andauthorizing such testing, observation, or other treatment. Such order shallexpire after a period of 12 hours unless extended by the court as part of anorder authorizing treatment under subsection A.
G. Any licensed health professional or licensed facility providing servicespursuant to the court's or magistrate's authorization as provided in thissection shall have no liability arising out of a claim to the extent it isbased on lack of consent to such services. Any such professional or facilityproviding services with the consent of the prisoner receiving treatment shallhave no liability arising out of a claim to the extent it is based on lack ofcapacity to consent if a court or a magistrate has denied a petitionhereunder to authorize such services, and such denial was based on anaffirmative finding that the prisoner was capable of making an informeddecision regarding the proposed services.
H. Nothing in this section shall be deemed to limit or repeal any common lawrule relating to consent for medical treatment or the right to apply or theauthority conferred by any other applicable statute or regulation relating toconsent.
§ 53.1-40.1. Medical and mental health treatment of prisoners incapable ofgiving consent.
A. The Director or his designee may petition the circuit court or anydistrict court judge or any special justice, as defined in § 37.2-100, hereinreferred to as the court, of the county or city in which the prisoner islocated for an order authorizing treatment of a prisoner sentenced andcommitted to the Department of Corrections. The court shall authorize suchtreatment in a facility designated by the Director upon finding, on the basisof clear and convincing evidence, that the prisoner is incapable, eithermentally or physically, of giving informed consent to such treatment and thatthe proposed treatment is in the best interests of the prisoner.
B. Prior to the court's authorization of such treatment, the court shallappoint an attorney to represent the interests of the prisoner. Evidenceshall be presented concerning the prisoner's condition and proposedtreatment, which evidence may, in the court's discretion and in the absenceof objection by the prisoner or the prisoner's attorney, be submitted byaffidavit.
C. Any order authorizing treatment pursuant to subsection A shall describethe treatment authorized and authorize generally such examinations, tests,medications, and other treatments as are in the best interests of theprisoner but may not authorize nontherapeutic sterilization, abortion, orpsychosurgery. Such order shall require the licensed physician, psychiatristor clinical psychologist acting within his area of expertise who is treatingthe prisoner to report to the court and the prisoner's attorney any change inthe prisoner's condition resulting in restoration of the prisoner'scapability to consent prior to completion of the authorized treatment andrelated services. Upon receipt of such report, the court may enter such orderwithdrawing or modifying its prior authorization as it deems appropriate. Anypetition 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 10days 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 suchappeal priority and hear the appeal as soon as possible.
E. Whenever the director of any hospital or facility reasonably believes thattreatment is necessary to protect the life, health, or safety of a prisoner,such treatment may be given during the period allowed for any appeal unlessprohibited by order of a court of record wherein the appeal is pending.
F. Upon the advice of a licensed physician, psychiatrist, or clinicalpsychologist acting within his area of expertise who has attempted to obtainconsent and upon a finding of probable cause to believe that a prisoner isincapable, due to any physical or mental condition, of giving informedconsent 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 isunavailable, a magistrate shall issue an order authorizing temporaryadmission of the prisoner to a hospital or other health care facility andauthorizing such testing, observation, or other treatment. Such order shallexpire after a period of 12 hours unless extended by the court as part of anorder authorizing treatment under subsection A.
G. Any licensed health professional or licensed facility providing servicespursuant to the court's or magistrate's authorization as provided in thissection shall have no liability arising out of a claim to the extent it isbased on lack of consent to such services. Any such professional or facilityproviding services with the consent of the prisoner receiving treatment shallhave no liability arising out of a claim to the extent it is based on lack ofcapacity to consent if a court or a magistrate has denied a petitionhereunder to authorize such services, and such denial was based on anaffirmative finding that the prisoner was capable of making an informeddecision regarding the proposed services.
H. Nothing in this section shall be deemed to limit or repeal any common lawrule relating to consent for medical treatment or the right to apply or theauthority conferred by any other applicable statute or regulation relating toconsent.
§ 53.1-40.1. Medical and mental health treatment of prisoners incapable ofgiving consent.
A. The Director or his designee may petition the circuit court or anydistrict court judge or any special justice, as defined in § 37.2-100, hereinreferred to as the court, of the county or city in which the prisoner islocated for an order authorizing treatment of a prisoner sentenced andcommitted to the Department of Corrections. The court shall authorize suchtreatment in a facility designated by the Director upon finding, on the basisof clear and convincing evidence, that the prisoner is incapable, eithermentally or physically, of giving informed consent to such treatment and thatthe proposed treatment is in the best interests of the prisoner.
B. Prior to the court's authorization of such treatment, the court shallappoint an attorney to represent the interests of the prisoner. Evidenceshall be presented concerning the prisoner's condition and proposedtreatment, which evidence may, in the court's discretion and in the absenceof objection by the prisoner or the prisoner's attorney, be submitted byaffidavit.
C. Any order authorizing treatment pursuant to subsection A shall describethe treatment authorized and authorize generally such examinations, tests,medications, and other treatments as are in the best interests of theprisoner but may not authorize nontherapeutic sterilization, abortion, orpsychosurgery. Such order shall require the licensed physician, psychiatristor clinical psychologist acting within his area of expertise who is treatingthe prisoner to report to the court and the prisoner's attorney any change inthe prisoner's condition resulting in restoration of the prisoner'scapability to consent prior to completion of the authorized treatment andrelated services. Upon receipt of such report, the court may enter such orderwithdrawing or modifying its prior authorization as it deems appropriate. Anypetition 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 10days 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 suchappeal priority and hear the appeal as soon as possible.
E. Whenever the director of any hospital or facility reasonably believes thattreatment is necessary to protect the life, health, or safety of a prisoner,such treatment may be given during the period allowed for any appeal unlessprohibited by order of a court of record wherein the appeal is pending.
F. Upon the advice of a licensed physician, psychiatrist, or clinicalpsychologist acting within his area of expertise who has attempted to obtainconsent and upon a finding of probable cause to believe that a prisoner isincapable, due to any physical or mental condition, of giving informedconsent 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 isunavailable, a magistrate shall issue an order authorizing temporaryadmission of the prisoner to a hospital or other health care facility andauthorizing such testing, observation, or other treatment. Such order shallexpire after a period of 12 hours unless extended by the court as part of anorder authorizing treatment under subsection A.
G. Any licensed health professional or licensed facility providing servicespursuant to the court's or magistrate's authorization as provided in thissection shall have no liability arising out of a claim to the extent it isbased on lack of consent to such services. Any such professional or facilityproviding services with the consent of the prisoner receiving treatment shallhave no liability arising out of a claim to the extent it is based on lack ofcapacity to consent if a court or a magistrate has denied a petitionhereunder to authorize such services, and such denial was based on anaffirmative finding that the prisoner was capable of making an informeddecision regarding the proposed services.
H. Nothing in this section shall be deemed to limit or repeal any common lawrule relating to consent for medical treatment or the right to apply or theauthority conferred by any other applicable statute or regulation relating toconsent.
