Virginia Law

Article 7. Prisoner Programs and Treatment.

The local governing body of any county, city or town may establish workforces in the county, city or town under such conditions as it may prescribe. Such workforces are authorized to work on (i) public property or works owned, leased or operated by the Commonwealth or the county, city or town; (ii) a privately operated national park on federal land; (iii) any property owned by a nonprofit organization that is exempt from taxation under 26 U.S.C. § 501(c)(3) or (c)(4) and that is organized and operated exclusively for charitable or social welfare purposes whether the same is located within such county, city or town, or elsewhere; or (iv) private property (a) owned or occupied by an elderly or indigent person or persons where such property has been identified by a citizens housing advisory committee as needing rehabilitation or repair and the property owner has consented to such work or (b) classified as or used as a cemetery where such property has been abandoned and where on such property exist nuisances that have been identified by a municipal corporation for abatement or removal pursuant to § 15.2-1115 or a similar local ordinance. Every person 18 years of age or older who is convicted and confined for any violation of a local ordinance and who is confined as a punishment or for failure to pay a required fine, shall be liable to work in such workforce. Every person 18 years of age or older who is confined pending disposition of an offense under Chapter 5 (§ 20-61 et seq.) of Title 20 or a criminal offense not listed in § 19.2-297.1 may work in such workforce on a voluntary basis with the approval of and under the supervision of the sheriff or his designee.

Code 1950, § 53-163; 1970, c. 648; 1982, c. 636; 1991, c. 580; 1997, cc. 123, 546; 2010, c. 168; 2011, c. 767; 2019, c. 199.

The circuit court of any county or city may, by order entered of record, allow persons confined in the jail of such county or city who are awaiting disposition of, or serving sentences imposed for, misdemeanors or felonies to work on (i) state, county, city or town property, (ii) any property owned by a nonprofit organization that is exempt from taxation under 26 U.S.C. § 501(c)(3) and that is organized and operated exclusively for charitable or social welfare purposes on a voluntary basis with the consent of the county, city, town or state agency or the local public service authority or upon the request of the nonprofit organization involved, (iii) private property that is part of a community improvement project sponsored by a locality or that has structures that are found to be public nuisances pursuant to §§ 15.2-900 and 15.2-906 provided that the court has reviewed and approved the project for the purposes herein and permits the prisoners to work on such project, (iv) any private property utilized by a nonprofit organization that is exempt from taxation under 26 U.S.C. § 501(c)(3), or (v) private property in any locality that meets the criteria under an ordinance adopted by such locality under § 15.2-908. The district court of any county or city may allow persons confined in the jail of such county or city who are awaiting disposition of, or serving sentences imposed for, misdemeanors to work on (a) state, county, city or town property, (b) any property owned by a nonprofit organization that is exempt from taxation under 26 U.S.C. § 501(c)(3) and that is organized and operated exclusively for charitable or social welfare purposes on a voluntary basis with consent of the county, city, town or state agency or the local public service authority or upon the request of the nonprofit organization involved, (c) private property that is part of a community improvement project sponsored by a locality or that has structures that are found to be public nuisances pursuant to §§ 15.2-900 and 15.2-906 provided that the court has reviewed and approved the project for the purposes herein and permits the prisoners to work on such project, (d) any private property utilized by a nonprofit organization that is exempt from taxation under 26 U.S.C. § 501(c)(3), or (e) private property in any locality that meets the criteria under an ordinance adopted by such locality under § 15.2-908. Prisoners performing work as provided in this paragraph may receive credit on their respective sentences for the work done, whether such sentences are imposed prior or subsequent to the work done, as the court orders.

The court may, by order entered of record, require a person convicted of a felony to work on state, county, city or town property, with the consent of the county, city, town or state agency or the local public service authority involved, for such credit on his sentence as the court orders.

In the event that a person other than the sheriff or jail superintendent is designated by the court to have charge of such prisoners while so working, the court shall require a bond of the person, in an amount to be fixed by the court, conditioned upon the faithful discharge of his duties. Neither the sheriff nor the jail superintendent shall be held responsible for any acts of omission or commission on the part of such person.

Any person committed to jail upon a felony offense committed on or after January 1, 1995, who receives credit on his sentence as provided in this section shall not be entitled to good conduct credit, sentence credit, earned sentence credit, other credit, or a combination of any credits in excess of that permissible under Article 4 (§ 53.1-202.2 et seq.) of Chapter 6 of this title. So much of an order of any court contrary to the provisions of Article 4 shall be deemed null and void.

Code 1950, § 53-165; 1976, c. 618; 1978, c. 609; 1982, c. 636; 1984, c. 43; 1991, c. 580; 1994, c. 269; 1997, cc. 134, 546; 1998, c. 311; 1999, cc. 277, 951, 1007; 2001, cc. 185, 196; 2003, cc. 818, 820; 2005, c. 409; 2008, c. 623; 2010, c. 132.

No sheriff, jail superintendent, deputy or other jail officer shall have any prisoner work on property owned by him or by his relative, or on projects in which he is interested, nor shall any such prisoner be used for the personal gain or convenience of any sheriff or of any other individual. Any person found guilty of a violation of this section shall be guilty of a Class 1 misdemeanor.

Code 1950, § 53-166; 1970, c. 648; 1982, c. 636; 1991, c. 383.

A. Any court having jurisdiction for the trial of a person charged with a criminal offense or charged with an offense under Chapter 5 (§ 20-61 et seq.) of Title 20 may, if the defendant is convicted and (i) sentenced to confinement in jail or (ii) being held in jail pending completion of a presentence report pursuant to § 19.2-299, and if it appears to the court that such offender is a suitable candidate for work release, assign the offender to a work release program under the supervision of a probation officer, the sheriff or the administrator of a local or regional jail or a program designated by the court. The court further may authorize the offender to participate in educational or other rehabilitative programs designed to supplement his work release employment. The court shall be notified in writing by the director or administrator of the program to which the offender is assigned of the offender's place of employment and the location of any educational or rehabilitative program in which the offender participates.

Any person who has been sentenced to confinement in jail or who has been convicted of a felony but is confined in jail pursuant to § 53.1-20, in the discretion of the sheriff may be assigned by the sheriff to a work release program under the supervision of the sheriff or the administrator of a local or regional jail. The sheriff may further authorize the offender to participate in educational or other rehabilitative programs as defined in this section designed to supplement his work release employment. The court that sentenced the offender shall be notified in writing by the sheriff or the administrator of a local or regional jail of any such assignment and of the offender's place of employment or other rehabilitative program. The court, in its discretion, may thereafter revoke the authority for such an offender to participate in a work release program.

The sheriff and the Director may enter into agreements whereby persons who are committed to the Department, whether such persons are housed in a state or local correctional facility, and who have met all standards for such release, may participate in a local work release program or in educational or other rehabilitative programs as defined in this section. The administrator of a regional jail and the Director may also enter into such agreements where such agreements are approved in advance by a majority of the sheriffs on the regional jail board. All persons accepted in accordance with this section shall be governed by all regulations applying to local work release, notwithstanding the provisions of any other section of the Code. Local jails shall qualify for compensation for cost of incarceration of such persons pursuant to § 53.1-20.1, less any payment for room and board collected from the inmate.

If an offender who has been assigned to such a program by the court is in violation of the rules of the jail pursuant to § 53.1-117, the sheriff or jail administrator may remove the offender from the work release program, either temporarily or for the duration of the offender's confinement. Upon removing an offender from the work release program, the sheriff or jail administrator shall notify in writing the court that sentenced the offender and indicate the specific violations that led to the decision.

Any offender assigned to such a program by the court or sheriff who, without proper authority or just cause, leaves the area to which he has been assigned to work or attend educational or other rehabilitative programs, or leaves the vehicle or route of travel involved in his going to or returning from such place, is guilty of a Class 1 misdemeanor. In the event such offender leaves the Commonwealth, the offender may be found guilty of an escape as provided in § 18.2-477. An offender who is found guilty of a Class 1 misdemeanor in accordance with this section shall be ineligible for further participation in a work release program during his current term of confinement.

The Board shall prescribe regulations to govern the work release, educational and other rehabilitative programs authorized by this section.

Any wages earned pursuant to this section by an offender may, upon order of the court, be paid to the director or administrator of the program after standard payroll deductions required by law. Distribution of such wages shall be made for the following purposes:

1. To pay an amount to defray the cost of his keep;

2. To pay travel and other such expenses made necessary by his work release employment or participation in an educational or rehabilitative program;

3. To provide support and maintenance for his dependents or to make payments to the local department of social services or the Commissioner of Social Services, as appropriate, on behalf of dependents who are receiving public assistance or social services as defined in § 63.2-100; or

4. To pay any fines, restitution or costs as ordered by the court.

Any balance at the end of his sentence shall be paid to the offender upon his release.

B. For the purposes of this section:

"Educational program" means a program of learning recognized by the State Council of Higher Education, the State Board of Education, the Director, or the State Board of Local and Regional Jails.

"Rehabilitative program" includes an alcohol and drug treatment program, mental health program, family counseling, community service or other community program approved by the court having jurisdiction over the offender.

"Sheriff" means the sheriff of the jurisdiction where the person charged with the criminal offense was convicted and sentenced, provided that the sheriff may designate a deputy sheriff or regional jail administrator to assign offenders to work release programs under this section.

"Work release" means full-time employment or participation in suitable career and technical education programs.

Code 1950, §§ 19-273.1, 53-166.1; 1956, c. 688; Code 1950, § 19.1-300; 1960, c. 366; 1970, c. 121; 1972, c. 145; 1973, c. 38; 1976, c. 295; 1979, c. 706; 1980, c. 566; 1982, c. 636; 1984, c. 516; 1985, c. 301; 1988, c. 397; 1989, c. 586; 1990, cc. 107, 676, 768; 2000, c. 423; 2002, cc. 747, 800; 2006, c. 792; 2020, c. 759.

Any court having jurisdiction for the trial of a person charged with a misdemeanor, traffic offense, any offense under Chapter 5 (§ 20-61 et seq.) of Title 20, or a felony that is not an act of violence as defined in § 19.2-297.1 may, for good cause, if the defendant is convicted and sentenced to confinement in jail and the active portion of the sentence remaining to be served is 45 days or less, impose the remaining time to be served on weekends or nonconsecutive days to permit the convicted defendant to retain gainful employment; however, the court shall not impose weekends or nonconsecutive days for a person convicted of a felony if the Commonwealth objects. A person sentenced pursuant to this section shall pay an amount to defray the cost of his keep, which amount shall be the actual cost of incarceration but shall not exceed that amount charged to the Compensation Board for purposes of reimbursement as provided in the general appropriation act. Such amount shall be collected by the sheriff, if he is responsible for operating a jail, or by the regional jail superintendent, and remitted by the sheriff to the treasurer of the appropriate county or city, or by the regional jail superintendent to the regional jail board or authority, solely for the purposes of defraying the costs of such weekend or nonconsecutive incarceration. The funds collected pursuant to this section shall not be used for purposes other than those provided for in this section. The assessment provided for herein shall be in addition to any other fees prescribed by law. If the defendant willfully fails to report at times specified by the court, the sentence imposed pursuant to this section shall be revoked and a straight jail sentence imposed.

If an offender who has been sentenced to nonconsecutive days by the court is in violation of the rules of the jail pursuant to § 53.1-117, the sheriff or jail administrator may require the offender to serve out a portion or the entirety of the remainder of his sentence in consecutive days. Upon revoking the offender's ability to serve his sentence on nonconsecutive days, the sheriff or jail administrator shall notify in writing the court that sentenced the offender and indicate the specific violations that led to the decision.

The time served by a person sentenced for violation of state law in a local jail, regional jail, or local jail farm pursuant to this section shall be included in the count of prisoner days reported by the Department for the purpose of apportioning state funds to local correctional facilities for operating costs in accordance with § 53.1-84.

1983, c. 172; 1984, c. 490; 1994, c. 901; 1999, c. 9; 2002, cc. 805, 831; 2003, c. 1039; 2006, c. 792; 2018, c. 535.

A. Any court having jurisdiction for the trial of a person charged with a criminal offense, a traffic offense or an offense under Chapter 5 (§ 20-61 et seq.) of Title 20, or failure to pay child support pursuant to a court order may, if the defendant is convicted and sentenced to confinement in a state or local correctional facility, and if it appears to the court that such an offender is a suitable candidate for home/electronic incarceration, assign the offender to a home/electronic incarceration program as a condition of probation, if such program exists, under the supervision of the sheriff, the administrator of a local or regional jail, or a Department of Corrections probation and parole district office established pursuant to § 53.1-141. However, any offender who is convicted of any of the following violations of Chapter 4 (§ 18.2-30 et seq.) of Title 18.2 shall not be eligible for participation in the home/electronic incarceration program: (i) first and second degree murder and voluntary manslaughter under Article 1 (§ 18.2-30 et seq.); (ii) mob-related felonies under Article 2 (§ 18.2-38 et seq.); (iii) any kidnapping or abduction felony under Article 3 (§ 18.2-47 et seq.); (iv) any malicious felonious assault or malicious bodily wounding under Article 4 (§ 18.2-51 et seq.); (v) robbery under § 18.2-58.1; or (vi) any criminal sexual assault punishable as a felony under Article 7 (§ 18.2-61 et seq.). The court may further authorize the offender's participation in work release employment or educational or other rehabilitative programs as defined in § 53.1-131 or, as appropriate, in a court-ordered intensive case monitoring program for child support. The court shall be notified in writing by the director or administrator of the program to which the offender is assigned of the offender's place of home/electronic incarceration, place of employment, and the location of any educational or rehabilitative program in which the offender participates.

B. In any city or county in which a home/electronic incarceration program established pursuant to this section is available, the court, subject to approval by the sheriff or the jail superintendent of a local or regional jail, may assign the accused to such a program pending trial if it appears to the court that the accused is a suitable candidate for home/electronic incarceration.

C. Any person who has been sentenced to jail or convicted and sentenced to confinement in prison but is actually serving his sentence in jail, after notice to the attorney for the Commonwealth of the convicting jurisdiction, may be assigned by the sheriff to a home/electronic incarceration program under the supervision of the sheriff, the administrator of a local or regional jail, or a Department of Corrections probation and parole office established pursuant to § 53.1-141. However, if the offender violates any provision of the terms of the home/electronic incarceration agreement, the offender may have the assignment revoked and, if revoked, shall be held in the jail facility to which he was originally sentenced. Such person shall be eligible if his term of confinement does not include a sentence for a conviction of a felony violent crime, a felony sexual offense, burglary or manufacturing, selling, giving, distributing or possessing with the intent to manufacture, sell, give or distribute a Schedule I or Schedule II controlled substance. The court shall retain authority to remove the offender from such home/electronic incarceration program. The court which sentenced the offender shall be notified in writing by the sheriff or the administrator of a local or regional jail of the offender's place of home/electronic incarceration and place of employment or other rehabilitative program.

D. The Board may prescribe regulations to govern home/electronic incarceration programs, and the Director may prescribe rules to govern home/electronic incarceration programs operated under the supervision of a Department of Corrections probation and parole district office established pursuant to § 53.1-141.

E. Any offender or accused assigned to such a program by the court or sheriff who, without proper authority or just cause, leaves his place of home/electronic incarceration, the area to which he has been assigned to work or attend educational or other rehabilitative programs, including a court-ordered intensive case monitoring program for child support, or the vehicle or route of travel involved in his going to or returning from such place, is guilty of a Class 1 misdemeanor. An offender or accused who is found guilty of a violation of this section shall be ineligible for further participation in a home/electronic incarceration program during his current term of confinement.

F. The director or administrator of a home/electronic incarceration program who also operates a residential program may remove an offender from a home/electronic incarceration program and place him in such residential program if the offender commits a noncriminal program violation. The court shall be notified of the violation and of the placement of the offender in the residential program.

G. The director or administrator of a home/electronic incarceration program may charge the offender or accused a fee for participating in the program which shall be used for the cost of home/electronic incarceration equipment. The offender or accused shall be required to pay the program for any damage to the equipment which is in his possession or for failure to return the equipment to the program.

H. Any wages earned by an offender or accused assigned to a home/electronic incarceration program and participating in work release shall be paid to the director or administrator after standard payroll deductions required by law. Distribution of the money collected shall be made in the following order of priority to:

1. Meet the obligation of any judicial or administrative order to provide support and such funds shall be disbursed according to the terms of such order;

2. Pay any fines, restitution or costs as ordered by the court;

3. Pay travel and other such expenses made necessary by his work release employment or participation in an education or rehabilitative program, including the sums specified in § 53.1-150; and

4. Defray the offender's keep.

The balance shall be credited to the offender's account or sent to his family in an amount the offender so chooses.

The State Board of Local and Regional Jails shall promulgate regulations governing the receipt of wages paid to persons participating in such programs, except programs operated under the supervision of a Department of Corrections probation and parole district office established pursuant to § 53.1-141, the withholding of payments, and the disbursement of appropriate funds. The Director shall prescribe rules governing the receipt of wages paid to persons participating in such programs operated under the supervision of a Department of Corrections probation and parole district office established pursuant to § 53.1-141, the withholding of payments, and the disbursement of appropriate funds.

I. For the purposes of this section, "sheriff" means the sheriff of the jurisdiction where the person charged with the criminal offense was convicted and sentenced, provided that the sheriff may designate a deputy sheriff or regional jail administrator to assign offenders to home/electronic incarceration programs pursuant to this section.

1989, c. 476; 1990, c. 209; 1991, cc. 278, 428; 1992, c. 604; 1994, cc. 612, 659, 688, 720, 841, 945; 2000, c. 423; 2002, c. 800; 2010, c. 682; 2020, cc. 10, 759.

Any sheriff or jail superintendent may establish a program to charge inmates a reasonable fee, not to exceed $3 per day, to defray the costs associated with the prisoners' keep. The Board shall develop a model plan and adopt regulations for such program, and shall provide assistance, if requested, to the sheriff or jail superintendent in the implementation of such program. Such funds shall be retained in the locality where the funds were collected and shall be used for general jail purposes; however, in the event the jail is a regional jail, funds collected from any such fee shall be retained by the regional jail. Any person jailed for an offense they are later acquitted for shall be refunded any such fees paid during their incarceration.

2003, c. 860; 2009, c. 842; 2010, c. 548.

The director of any work release program authorized by § 53.1-131 may, subject to rules and regulations prescribed by the Board, extend the limits of confinement of any offender participating in a work release program that is subject to the director's authority to permit the offender a furlough for the purpose of visiting his home or family. If such offender is participating in a work release program under the supervision of the administrator of a regional jail and the furlough would extend the limits of confinement of the offender to a locality not served by that regional jail, then notice of the furlough shall be provided to the sheriff of such locality. Such furlough shall be for a period to be prescribed by the director, not to exceed three days. The time during which an offender is on furlough shall not be counted as time served against any sentence, and during any furlough, no earned sentence credit as defined in § 53.1-116, good conduct allowance or credits, or any other reduction of sentence shall accrue.

Any offender who, without proper authority or without just cause, fails to remain within the limits of confinement set by the director hereunder, or fails to return within the time prescribed to the place designated by the director in granting such authority, shall be guilty of a Class 1 misdemeanor. An offender who is found guilty of a Class 1 misdemeanor in accordance with this section shall be ineligible for further participation in a work release program during his current term of confinement.

Code 1950, § 53-166.2; 1980, c. 566; 1982, c. 636; 2000, c. 423; 2003, c. 846; 2020, c. 4.

Upon application of the person in charge of a local correctional facility, if that application is affirmed by the physician serving such facility, a judge of a circuit court is authorized to have removed from any correctional facility within his jurisdiction any person confined therein who has contracted any contagious or infectious disease dangerous to the public health. Such persons shall be removed to some other place designated by the judge. When any person is so removed, he shall be safely kept and receive proper care and attention including medical treatment. As soon as he recovers his health, he shall be returned to the correctional facility from which he was moved, unless the term of his imprisonment has expired, in which event he shall be discharged, but not until all danger of his spreading contagion has passed. Expenses incurred under and by reason of this section shall be paid as provided by law.

Code 1950, § 53-135.2; 1979, c. 109; 1982, c. 636.

Any sheriff or superintendent may establish a medical treatment program for prisoners in which prisoners participate and pay towards a portion of the costs thereof. The State Board of Local and Regional Jails shall develop a model plan and promulgate regulations for such program, and shall provide assistance, if requested, to the sheriff or superintendent in the implementation of a program.

1994, c. 694; 2020, c. 759.

Each jail superintendent or sheriff who operates a correctional facility is authorized to establish administrative procedures according to regulations promulgated by the Board for recovering from an inmate the cost for medical treatment of a physical injury that is inflicted intentionally on any person, including the inmate himself, by the inmate. Such administrative procedures shall ensure that the inmate is afforded due process.

1997, c. 125; 2003, cc. 928, 1019.

Prior to the release, including work release, or discharge of any prisoner, and as soon as practicable following his transfer to a prison, a different jail facility, or any other correctional or detention facility, his escape, or the change of his name, the sheriff or superintendent who has custody of the prisoner shall give notice of any such occurrence, delivered by first-class mail or by telephone or both, to any victim of the offense as defined in § 19.2-11.01 who, in writing, requests notice or to any person designated in writing by the victim. The notice shall be given at least 15 days prior to release or discharge and as soon as practicable following a transfer, an escape, or a change of name. Notice shall be given using the address and telephone number provided in writing by the victim. For the purposes of this section, "prisoner" means a person sentenced to serve more than 30 days of incarceration or detention. Such notification may be provided through the Virginia Statewide VINE (Victim Information and Notification Everyday) System or other similar electronic or automated system.

No civil liability shall attach for a failure to give notice as provided in this section.

1995, c. 687; 2007, cc. 94, 109; 2015, c. 101.

A. Whenever a person is committed to a local or regional 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 of any person committed to jail and transferred to another correctional facility may be exchanged among administrative personnel of the correctional facilities involved and of the administrative personnel within the holding facility when there is reasonable cause to believe that such information is necessary to maintain the security and safety of the holding facility, its employees, or 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 or its designees, as specified in § 53.1-138, in order to conduct the investigation required under § 53.1-155.

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

4. Officials of the facilities involved and officials within the holding facility 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 other such programs.

5. Medical and mental health hospitals and facilities, both public and private, including community services boards and health departments, for use in treatment while committed to jail or a correctional facility while under supervision of a probation or parole officer.

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 and 32.1-116.3.

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 State Board of Local and Regional Jails 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. Nothing contained in this section shall prohibit the release of records to the Department of Health Professions or health regulatory boards consistent with Subtitle III (§ 54.1-2400 et seq.) of Title 54.1.

E. Except for any information and records not subject to this section or not permitted to be disclosed pursuant to subsection B, any health care provider as defined in § 32.1-127.1:03 who has provided services within the last two years to a person committed to a local or regional correctional facility shall, upon request by the local or regional correctional facility, disclose to the local or regional correctional facility where the person is committed any information necessary to ensure the continuity of care of the person committed. Any health care provider who discloses medical and mental health information and records pursuant to this section shall be immune from civil liability resulting from such disclosure, including any liability under the federal Health Insurance Portability and Accountability Act (42 U.S.C. § 1320d et seq.), absent bad faith or malicious intent.

1997, c. 443; 2018, c. 165; 2019, cc. 702, 827; 2020, cc. 759, 836, 837.

A. The sheriff or administrator in charge of a local or regional correctional facility 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 confined in the local or regional correctional facility. Upon filing the petition, the petitioner or the court shall serve a certified copy of the petition to the person for whom treatment is sought and, if the identity and whereabouts of the person's next of kin are known, to the person's next of kin. The court shall authorize such treatment in a facility designated by the sheriff or administrator 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; that the prisoner does not have a relevant advanced directive, guardian, or other substitute decision maker; that the proposed treatment is in the best interests of the prisoner; and that the jail has sufficient medical and nursing resources available to safely administer the treatment and respond to any adverse side effects that might arise from the treatment. The facility designated for treatment by the sheriff or administrator may be located within a local or regional correctional facility if such facility is licensed to provide the treatment authorized by the court order.

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 that a written order is subsequently executed.

D. Prior to authorizing treatment pursuant to this section, the court shall find that there is no available person with legal authority under the Health Care Decisions Act (§ 54.1-2981 et seq.) or under other applicable law to authorize the proposed treatment.

E. 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.

F. 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.

G. 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.

H. 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 that it is based on lack of consent to such services, except with respect to injury or death resulting from gross negligence or willful and wanton misconduct. 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 that it is based on lack of capacity to consent, except with respect to injury or death resulting from gross negligence or willful and wanton misconduct, 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.

I. 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.

2019, c. 809.

A. Any hearing held by a court pursuant to § 53.1-133.04 may be held in any courtroom available within the county or city wherein the prisoner is located or any appropriate place that may be made available by the sheriff or administrator in charge of a local or regional correctional facility and approved by the judge. Nothing herein shall be construed as prohibiting holding the hearing on the grounds of a correctional facility or a hospital or a facility for the care and treatment of individuals with mental illness.

B. Any special justice, as defined in § 37.2-100, and any district court substitute judge who presides over hearings pursuant to the provisions of § 53.1-133.04 shall receive a fee as provided in § 37.2-804 for each proceeding under § 53.1-133.04 and his necessary mileage. However, if a commitment hearing under § 19.2-169.6 and the proceeding under § 53.1-133.04 are combined for hearing or are heard on the same day, only one fee shall be allowed.

C. Every physician or clinical psychologist who is not regularly employed by the Commonwealth who is required to serve as a witness for the Commonwealth in any proceeding under § 53.1-133.04 shall receive a fee as provided in § 37.2-804. Other witnesses regularly summoned before a judge shall receive such compensation for their attendance and mileage as is allowed witnesses summoned to testify before grand juries.

D. Every attorney appointed under § 53.1-133.04 shall receive a fee as provided in § 37.2-804 for each proceeding under § 53.1-133.04 for which he is appointed. However, if a commitment hearing under § 19.2-169.6 and the proceeding under § 53.1-133.04 are combined for hearing or are heard on the same day, only one fee shall be allowed.

E. 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 a proceeding under § 53.1-133.04, 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. 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.

2019, c. 809.