Code of Virginia

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Code of Virginia
Title 53.1. Prisons and Other Methods of Correction
Chapter 2. State Correctional Facilities
12/2/2022

Article 2.1. Medical and Mental Health Care; Involuntary Admission and Treatment.

§ 53.1-40.1. Medical and mental health treatment of prisoners incapable of giving consent.

A. The Director or his designee may petition the circuit court or any district court judge or any special justice, as defined in § 37.2-100, herein referred to as the court, of the county or city in which the prisoner is located for an order authorizing treatment of a prisoner sentenced and committed to the Department of Corrections. The court shall authorize such treatment in a facility designated by the Director upon finding, on the basis of clear and convincing evidence, that the prisoner is incapable, either mentally or physically, of giving informed consent to such treatment and that the proposed treatment is in the best interests of the prisoner.

B. Prior to the court's authorization of such treatment, the court shall appoint an attorney to represent the interests of the prisoner. Evidence shall be presented concerning the prisoner's condition and proposed treatment, which evidence may, in the court's discretion and in the absence of objection by the prisoner or the prisoner's attorney, be submitted by affidavit.

C. Any order authorizing treatment pursuant to subsection A shall describe the treatment authorized and authorize generally such examinations, tests, medications, and other treatments as are in the best interests of the prisoner but may not authorize nontherapeutic sterilization, abortion, or psychosurgery. Such order shall require the licensed physician, psychiatrist, clinical psychologist, professional counselor, or clinical social worker acting within his area of expertise who is treating the prisoner to report to the court and the prisoner's attorney any change in the prisoner's condition resulting in restoration of the prisoner's capability to consent prior to completion of the authorized treatment and related services. Upon receipt of such report, 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 is subsequently executed.

D. Any order of a judge under subsection A may be appealed de novo within 10 days 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 such appeal priority and hear the appeal as soon as possible.

E. Whenever the director of any hospital or facility reasonably believes that treatment is necessary to protect the life, health, or safety of a prisoner, such treatment may be given during the period allowed for any appeal unless prohibited by order of a court of record wherein the appeal is pending.

F. Upon the advice of a licensed physician, psychiatrist, or clinical psychologist acting within his area of expertise who has attempted to obtain consent and upon a finding of probable cause to believe that a prisoner is incapable, due to any physical or mental condition, of giving informed consent 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 is unavailable, a magistrate shall issue an order authorizing temporary admission of the prisoner to a hospital or other health care facility and authorizing such testing, observation, or other treatment. Such order shall expire after a period of 12 hours unless extended by the court as part of an order authorizing treatment under subsection A.

G. Any licensed health or mental health professional or licensed facility providing services 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 it is based on lack of consent to such services. Any such professional or facility providing services with the consent of the prisoner receiving 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 services, and such denial was based on an affirmative finding that the prisoner was capable of making an informed decision regarding the proposed services.

H. Nothing in this section shall be deemed to limit or repeal any common law rule relating to consent for medical treatment or the right to apply or the authority conferred by any other applicable statute or regulation relating to consent.

1988, c. 873; 1997, c. 801; 2005, c. 716; 2016, c. 211.

§ 53.1-40.2. Involuntary admission of prisoners with mental illness.

A. Upon the petition of the Director or his designee, any district court judge or any special justice, as defined by § 37.2-100, of the county or city where the prisoner is located may issue an order authorizing involuntary admission of a prisoner who is sentenced and committed to the Department of Corrections and who is alleged or reliably reported to have a mental illness to a degree that warrants hospitalization.

B. Such prisoner may be involuntarily admitted to a hospital or facility for the care and treatment of persons with mental illness by complying with the following admission procedures:

1. A hearing on the petition shall be scheduled as soon as possible, allowing the prisoner an opportunity to prepare any defenses which he may have, obtain independent evaluation and expert opinion at his own expense, and summons other witnesses.

2. Prior to such hearing, the judge or special justice shall fully inform the prisoner of the allegations of the petition, the standard upon which he may be admitted involuntarily, the right of appeal from such hearing to the circuit court, and the right to jury trial on appeal. The judge or special justice shall ascertain if the prisoner is represented by counsel, and, if he is not represented by counsel, the judge or special justice shall appoint an attorney to represent the prisoner.

3. The judge or special justice shall require an examination of such prisoner by a psychiatrist, clinical psychologist, clinical social worker, or licensed professional counselor who is licensed in Virginia or, if such psychiatrist, clinical psychologist, clinical social worker, or licensed professional counselor is not available, a physician or psychologist who is licensed in Virginia and who is qualified in the diagnosis of mental illness. The judge or special justice shall summons the examiner, who shall certify that he has personally examined the individual and has probable cause to believe that the prisoner does or does not have mental illness, that there does or does not exist a substantial likelihood that, as a result of mental illness, the prisoner will, in the near future, cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information, if any, and that the prisoner does or does not require involuntary hospitalization. The judge or special justice may accept written certification of the examiner's findings if the examination has been personally made within the preceding five days and if there is no objection to the acceptance of such written certification by the prisoner or his attorney.

4. If the judge or special justice, after observing the prisoner and obtaining the necessary positive certification and other relevant evidence, finds specifically that (i) the prisoner has a mental illness and that there exists a substantial likelihood that, as a result of mental illness, the prisoner will, in the near future, (a) cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm and other relevant information, if any, or (b) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for his basic human needs, and (ii) alternatives to involuntary admission have been investigated and deemed unsuitable and there is no less restrictive alternative to such admission, the judge or special justice shall by written order and specific findings so certify and order that the prisoner be placed in a hospital or other facility designated by the Director for a period not to exceed 180 days from the date of the court order. Such placement shall be in a hospital or other facility for the care and treatment of persons with mental illness that is licensed or operated by the Department of Behavioral Health and Developmental Services.

5. The judge or special justice shall also order that the relevant medical records of such prisoner be released to the hospital, facility, or program in which he is placed upon request of the treating physician or director of the hospital, facility, or program.

6. The Department shall prepare the forms required in procedures for admission as approved by the Attorney General. These forms, which shall be the legal forms used in such admissions, shall be distributed by the Department to the clerks of the general district courts of the various counties and cities of the Commonwealth and to the directors of the respective state hospitals.

1988, c. 873; 2005, c. 716; 2008, cc. 779, 850, 870; 2009, cc. 813, 840; 2020, c. 945; 2022, c. 509.

§ 53.1-40.3. Place of hearing or proceeding.

Any hearing held by a court pursuant to § 53.1-40.1 or 53.1-40.2 may be held in any courtroom available within the county or city wherein the prisoner is located or any appropriate place which may be made available by the Director and approved by the judge. Nothing herein shall be construed as prohibiting holding the hearing on the grounds of a state or local correctional facility or a hospital or facility for the care and treatment of individuals with mental illness.

1988, c. 873; 2012, cc. 476, 507.

§ 53.1-40.4. Appeal of order authorizing involuntary admission.

A. Any prisoner involuntarily committed pursuant to § 53.1-40.2 shall have the right to appeal such order to the circuit court in the jurisdiction wherein the prisoner is located. The decision of the circuit court shall be final with no further right of appeal.

B. Such appeal must be filed within ten days from the date of the order and shall be given priority over all other pending matters before the court and heard as soon as possible, notwithstanding the provisions of § 19.2-241 providing time within which the court shall set criminal cases for trial. The clerk of the court from which an appeal is taken shall immediately transmit the record to the clerk of the circuit court.

C. No appeal bond or writ tax shall be required and the appeal shall proceed without the payment of costs or other fees. Costs may be recovered as provided for in § 53.1-40.8.

D. The appeal to the circuit court shall be heard de novo. An order continuing the commitment shall be entered only if the criteria in § 53.1-40.2 are met at the time the appeal is heard. The prisoner so committed shall be entitled to trial by jury. Seven persons from a panel of thirteen shall constitute a jury in such cases.

E. If such prisoner is not represented by counsel, the judge shall appoint an attorney to represent him. Counsel so appointed shall be paid a fee as provided in § 37.2-821. The order of the court from which the appeal is taken shall be defended by the attorney for the Commonwealth.

1988, c. 873; 1994, c. 211.

§ 53.1-40.5. Transfer of prisoner involuntarily admitted.

Whenever a prisoner is admitted to a hospital or facility for the care and treatment of individuals with mental illness, the Director may order the transfer of the prisoner to any other willing hospital or facility for the care and treatment of individuals with mental illness, and such other hospital or facility is authorized to admit such prisoner under the authority of the commitment order applicable to the hospital or facility from which such prisoner was transferred. No such transfer shall alter any right of a prisoner under the provisions of this article nor shall such transfer divest a judge or court, before which a hearing or request therefor is pending, of jurisdiction to conduct such hearing.

1988, c. 873; 2012, cc. 476, 507.

§ 53.1-40.6. Periodic review of prisoner for purposes of retention.

The director of a hospital or facility shall require a review of the progress of each prisoner admitted to such hospital or facility to be conducted at intervals of thirty days, sixty days, and ninety days after admission of such prisoner and every six months thereafter to determine whether such prisoner should be retained at such hospital or facility. A record shall be kept of the findings of each review in the hospital's or facility's file on such prisoner.

1988, c. 873.

§ 53.1-40.7. Discharge of prisoner involuntarily admitted.

A. The prisoner shall be discharged from a hospital or facility for the care and treatment of individuals with mental illness to a state or local correctional facility designated by the Director if there is no further need for involuntary hospitalization or at the expiration of 180 days unless involuntarily committed by further petition and order of a court as provided herein.

B. Notwithstanding the provisions of subsection A, if there is no further need for involuntary hospitalization, the prisoner may be retained in such hospital or facility if the prisoner (i) is capable of and consents to voluntary admission, and (ii) has been examined by a licensed physician, psychiatrist, or clinical psychologist acting on staff within his area of expertise and is determined to be in need of continued hospitalization.

1988, c. 873; 2005, c. 639; 2012, cc. 476, 507.

§ 53.1-40.8. Fees and expenses.

A. Any special justice, as defined in § 37.2-100, and any district court substitute judge who presides over hearings pursuant to the provisions of §§ 53.1-40.1 and 53.1-40.2 shall receive a fee as provided in § 37.2-804 for each commitment hearing under § 53.1-40.2 and each proceeding under § 53.1-40.1 ruling on competency or treatment and his necessary mileage. However, if the commitment hearing under § 53.1-40.2 and the proceeding under § 53.1-40.1 are combined for hearing or are heard on the same day, only one fee shall be allowed.

B. Every physician or clinical psychologist who is not regularly employed by the Commonwealth of Virginia who is required to serve as a witness for the Commonwealth in any proceeding under this article shall receive a fee as provided in § 37.2-804 for each commitment hearing in which he serves. Other witnesses regularly summoned before a judge under the provisions of this article shall receive such compensation for their attendance and mileage as is allowed witnesses summoned to testify before grand juries.

C. Every attorney appointed under this article shall receive a fee as provided in § 37.2-804 for each commitment hearing under § 53.1-40.2 and each proceeding under § 53.1-40.1 for which he is appointed. However, if the commitment hearing under § 53.1-40.2 and the proceeding under § 53.1-40.1 are combined for hearing or are heard on the same day, only one fee shall be allowed.

D. Except as hereinafter provided, all expenses incurred, including the fees, attendance, and mileage aforesaid, shall be paid by the Commonwealth. Any such fees, costs, and expenses incurred in connection with an examination or hearing for an admission pursuant to § 53.1-40.2 or in connection with a proceeding under § 53.1-40.1, when paid by the Commonwealth, shall be recoverable by the Commonwealth from the prisoner who is the subject of the examination, hearing, or proceeding or from his estate. Such collection or recovery may be undertaken by the Department. All such fees, costs, and expenses, if collected or recovered by the Department, shall be refunded to the Commonwealth. No such fees or costs shall be recovered, however, from the prisoner or his estate when no good cause for his admission exists or when the recovery would create an undue financial hardship.

1988, c. 873; 1990, c. 221; 2005, c. 716.

§ 53.1-40.9. Civil admission proceeding prior to release.

A prisoner whose release from the custody of the Department of Corrections is imminent and who may have a mental illness and be in need of hospitalization or treatment may be the subject of an involuntary admission proceeding under §§ 37.2-814 through 37.2-819 within 15 days prior to his anticipated release date, and any order entered in such proceedings shall be effective upon the release of the prisoner from the Department of Corrections. If a commitment hearing for involuntary admission under §§ 37.2-814 through 37.2-819 is combined for hearing or is heard on the same day with either a commitment hearing under § 53.1-40.2 or a proceeding under § 53.1-40.1, or both, only one fee shall be allowed for the special justice or district court substitute judge conducting these proceedings and only one fee shall be allowed for the attorney representing the prisoner in these proceedings.

1990, c. 221; 2005, c. 716.

§ 53.1-40.10. Exchange of medical and mental health information and records.

A. Whenever a person is committed to a state correctional facility, the following shall be entitled to obtain medical and mental health information and records concerning such person from a health care provider, even when such person does not provide consent or consent is not readily obtainable:

1. The person in charge of the facility, or his designee, when such information and records are necessary (i) for the provision of health care to the person committed, (ii) to protect the health and safety of the person committed or other residents or staff of the facility, or (iii) to maintain the security and safety of the facility. Such information and records may be exchanged among administrative personnel for the facility in which the person is imprisoned as necessary to maintain the security and safety of the facility, its employees, or other prisoners. The information exchanged shall continue to be confidential and disclosure shall be limited to that necessary to ensure the security and safety of the facility.

2. Members of the Parole Board, as specified in § 53.1-138, in order to conduct the investigation required under § 53.1-155.

3. Probation and parole officers for use in parole and probation planning, release, and supervision.

4. Officials within the Department for the purpose of formulating recommendations for treatment and rehabilitative programs; classification, security and work assignments; and determining the necessity for medical, dental, and mental health care, treatment, and programs.

5. Medical and mental health hospitals and facilities, both public and private, including community services boards, for use in planning for and supervision of post-incarceration medical and mental health care, treatment, and programs.

6. The Department for Aging and Rehabilitative Services, the Department of Social Services, and any local department of social services in the Commonwealth for the purposes of reentry planning and post-incarceration placement and services.

B. Substance abuse records subject to federal regulations, Confidentiality of Alcohol and Drug Abuse Patient Records, 42 C.F.R. § 2.11 et seq., shall not be subject to the provisions of this section. The disclosure of results of a test for human immunodeficiency virus shall not be permitted except as provided in § 32.1-36.1.

C. The release of medical and mental health information and records to any other agency or individual shall be subject to all regulations promulgated by the Department that govern confidentiality of such records. Medical and mental health information concerning a prisoner that has been exchanged pursuant to this section may be used only as provided herein and shall otherwise remain confidential and protected from disclosure.

D. The Department shall develop policies to improve the exchange of medical and mental health information and records of persons committed to a state correctional facility, including policies to improve access to electronic health records and electronic exchange of information and records for the provision of telemedicine and telepsychiatry.

1991, c. 597; 2013, cc. 164, 235; 2018, c. 165; 2019, cc. 202, 827.