37.2-1101 - Judicial authorization of treatment.
§ 37.2-1101. Judicial authorization of treatment.
A. An appropriate circuit court or district court judge or special justicemay authorize treatment for a mental or physical disorder on behalf of anadult person, in accordance with this section, if it finds upon clear andconvincing evidence that (i) the person is either incapable of making aninformed decision on his own behalf or is incapable of communicating such adecision due to a physical or mental disorder and (ii) the proposed treatmentis in the best interest of the person.
B. Any person may request authorization of treatment for an adult person byfiling a petition in the circuit court or district court or with a specialjustice of the county or city in which the person for whom treatment issought resides or is located or in the county or city in which the proposedplace of treatment is located. Upon filing the petition, the petitioner orthe court shall deliver or send a certified copy of the petition to theperson for whom treatment is sought and, if the identity and whereabouts ofthe person's next of kin are known, to the next of kin.
C. As soon as reasonably possible after the filing of the petition, the courtshall appoint an attorney to represent the interests of the person for whomtreatment is sought at the hearing. However, the appointment shall not berequired in the event that the person or another interested person on behalfof the person elects to retain private counsel at his own expense torepresent the interests of the person at the hearing. If the person for whomtreatment is sought is indigent, his counsel shall be paid by theCommonwealth as provided in § 37.2-804 from funds appropriated to reimburseexpenses incurred in the involuntary admission process. However, thisprovision shall not be construed to prohibit the direct payment of anattorney's fee by the person or an interested person on his behalf, which feeshall be subject to the review and approval of the court.
D. Following the appointment of an attorney pursuant to subsection C, thecourt shall schedule an expedited hearing of the matter. The court shallnotify the person for whom treatment is sought, his next of kin, if known,the petitioner, and their respective counsel of the date and time for thehearing. In scheduling the hearing, the court shall take into account thetype and severity of the alleged physical or mental disorder, as well as theneed to provide the person's attorney with sufficient time to adequatelyprepare his client's case.
E. Notwithstanding the provisions of subsections B and D regarding deliveryor service of the petition and notice of the hearing to the next of kin ofany person for whom consent to treatment is sought, if the person is apatient in any hospital, including a hospital licensed by the Department ofHealth pursuant to § 32.1-123 or a resident in any facility operated by theDepartment of Behavioral Health and Developmental Services and such personhas no known guardian or legally authorized representative, at the time thepetition is filed, the court may dispense with the requirement of any noticeto the next of kin. If treatment is necessary to prevent imminent orirreversible harm, the court in its discretion may dispense with therequirement of providing notice. This subsection shall not be construed tointerfere with any decision made pursuant to the Health Care Decisions Act (§54.1-2981 et seq.).
F. Prior to the hearing, the attorney shall investigate the risks andbenefits of the treatment decision for which authorization is sought and ofalternatives to the proposed decision. The attorney shall make a reasonableeffort to inform the person of this information and to ascertain the person'sreligious beliefs and basic values and the views and preferences of theperson's next of kin. A health care provider shall disclose or make availableto the attorney, upon request, any information, records, and reportsconcerning the person that the attorney determines necessary to perform hisduties under this section. Evidence presented at the hearing may be submittedby affidavit in the absence of objection by the person for whom treatment issought, the petitioner, either of their respective counsel, or by any otherinterested party.
G. Prior to authorizing treatment pursuant to this section, the court shallfind:
1. That there is no legally authorized representative available to giveconsent;
2. That the person for whom treatment is sought is incapable of making aninformed decision regarding treatment or is physically or mentally incapableof communicating such a decision;
3. That the person who is the subject of the petition is unlikely to becomecapable of making an informed decision or of communicating an informeddecision within the time required for decision; and
4. That the proposed treatment is in the best interest of the person and ismedically and ethically appropriate with respect to (i) the medical diagnosisand prognosis and (ii) any other information provided by the attendingphysician of the person for whom treatment is sought. However, the courtshall not authorize a proposed treatment that is proven by a preponderance ofthe evidence to be contrary to the person's religious beliefs or basicvalues, unless the treatment is necessary to prevent death or a seriousirreversible condition. The court shall take into consideration the right ofthe person to rely on nonmedical, remedial treatment in the practice ofreligion in lieu of medical treatment.
H. Any order authorizing treatment pursuant to subsection A shall describeany treatment authorized and may authorize generally such relatedexaminations, tests, or services as the court may determine to be reasonablyrelated to the treatment authorized. Treatment authorized by such order mayinclude palliative care as defined in § 32.1-162.1, if appropriate. The ordershall require the treating physician to review and document theappropriateness of the continued administration of antipsychotic medicationsnot less frequently than every 30 days. The order shall require the treatingphysician or other service provider to report to the court and the person'sattorney any change in the person's condition resulting in probablerestoration or development of the person's capacity to make and tocommunicate an informed decision prior to completion of any authorizedtreatment and related services. The order may further require the treatingphysician or other service provider to report to the court and the person'sattorney any change in circumstances regarding any authorized treatment orrelated services that may indicate that such authorization is no longer inthe person's best interests. Upon receipt of such report or upon the petitionof any interested party, the court may enter an order withdrawing ormodifying its prior authorization as it deems appropriate. Any petition ororder under this section may be orally presented or entered, provided awritten order shall be subsequently executed.
(1997, c. 921, § 37.1-134.21; 1999, cc. 814, 946, 985; 2003, c. 790; 2004,cc. 66, 104, 1014; 2005, cc. 716, 751; 2009, cc. 813, 840.)