R. Shawn Majette, VSB 19372Thompson and McMullan, P.C.
100 Shockoe Slip
Richmond, Virginia 23219
804/643-4145 Telephone 804/780-1813 Facsimile
www://majette.netEmail: smajette@t-mlaw.com
As of April 1, 2024:
shawn@majette.net
Reedville, Virginia
Phone, Video by appointment
I. Adult Civil Commitment
An adult patient requires psychiatric treatment because he is mentally ill and dangerous to himself, someone else, or unable to care for himself. He cannot, or will not, accept such treatment.
Virginia has a statutory procedure that provides for the assessment, detention, and treatment of mentally persons who are imminently dangerous to themselves or others. The procedure is civil, not criminal. The “imminent danger” standard is constitutionally mandated, and prevents the state from using the process to curtail liberty except when the balance of interests shifts to a legitimate police power – the protection of the individual and community from acts of violence (suicide, assault), or self neglect that could lead to death.
It is not sufficient that a mentally ill patient would benefit from treatment; not all mentally ill persons are dangerous. It is also not sufficient that the person is dangerous; not all dangerous persons are mentally ill. The criminal law exists to punish completed criminal acts of violence or, in certain cases such as conspiracy, solicitation, etc., non-violent acts combined with the necessary criminal intent.
How can the physician secure treatment for a mentally ill person who is believed to be dangerous to himself or others, or unable to care for himself?
Emergency Custody Order
1. What is an emergency custody order?
An emergency custody order is a judicial order which commands that a person be taken into custody and transported to a convenient location to be evaluated by a person designated by the local community services board who is skilled in the diagnosis and treatment of mental illness in order to assess the need for hospitalization. The evaluator must immediately assess the subject, who is required to remain in custody until a temporary detention order is issued or the evaluator releases him. The maximum period of detention is eight hours.
2. Who issues it?
The magistrate of the jurisdiction where the subject resides issues the ECO.
The telephone number for the Richmond magistrate is 804/646-6689.
3. Who may request the issuance of an emergency custody order?
Any person may request it.
4. What are the legal standards for issuance of an emergency custody order?
The magistrate must be persuaded that the subject probably suffers from mental illness and probably requires psychiatric hospitalization because, as a result of mental illness, he presents an imminent danger to himself, to others, or is so seriously mentally ill as to be substantially unable to care for himself.
5. Is there an alternate procedure when there is insufficient time to request an emergency custody order? Can a police officer take the person into custody without an emergency custody order?
Yes. A law enforcement officer may take a person into custody and transport that person to an appropriate location to assess the need for hospitalization without prior judicial authorization. However, the officer must have probable cause to believe that the person meets the foregoing criteria. The probable cause may be based upon his observation or the reliable reports of others.
6. How long is an emergency custody order valid?
The emergency custody order has a “life” of eight hours from issuance (not to be confused with the four hour detention maximum once the subject is in custody). If the emergency custody order is not executed within eight hours of the time it is issued, the order is void. The peace officer is required to return it unexecuted to the clerk of the issuing court or, if the clerk’s office is such office is not open, to any judge or magistrate thereof.
Temporary Detention Order
7. What is a temporary detention order?
A temporary detention order is a judicial which commands a peace officer to take its subject into custody and to transport him to the a local hospital (“facility of temporary detention”). The hospital is determined by an employee of the local community services board or its designee. The hospital must be identified on a pre-screening report of the community services board and indicated on the temporary detention order.
The detention hospital must be approved by the Department of Mental Health, Mental Retardation and Substance Abuse Services. Except for criminal defendants (detained in jail or sentenced after conviction), a person cannot be detained in a jail or other place of confinement for persons charged with criminal offenses.
The order is the basis for a civil commitment hearing in which a judge or special justice appears in the hospital (or in some jurisdictions, in a courthouse) to determine whether the subject wishes to volunteer for treatment, and if not, meets the criteria for involuntary treatment.
8. Can emergency medical care be provided during the period of temporary detention?
The temporary detention order may authorize the peace officer to transport the subject to any medical facility which may be necessary to obtain emergency medical evaluation or treatment prior to admission to the “facility of temporary detention.”
In addition, an institution caring for a patient under a temporary order of detention may provide emergency medical and psychiatric services within its capabilities when the institution determines such services are in the best interests of the person within its care. In cases where emergency treatment is required to save the patient’s life or avoid a serious, irreversible medical condition, a magistrate or special justice can issue an emergency medical detention order.
9. Who issues the temporary detention order?
The magistrate of the jurisdiction where the subject resides issues the emergency custody order. A special justice cannot issue a psychiatric temporary detention order.
(Note that independently of a temporary detention order, a special justice of the general district court can issue an emergency medical detention order for emergency medical treatment when a patient is so seriously ill that he will likely suffer harm within twenty four hours in the absence of such treatment and the patient cannot make, or communicate, informed consent to such treatment. See this link.)
10. Who may petition the magistrate to issue a temporary detention order?
“[A]ny responsible person” may petition the magistrate to issue the temporary detention order after an in-person evaluation by local community services board. The magistrate is specifically authorized to consider “all evidence readily available, including any recommendation from a physician treating the person or from a clinical psychologist treating the person,” in making the determination, and is thus authorized to issue the order even when the local CSB does not recommend the issuance.
11. Can anyone be designated by the local community services board to perform the evaluation required for the issuance of a temporary detention order?
No. A designee of a community services board must be able to provide an independent examination of the subject. By statute, the designee may not be related by blood or marriage to the subject, and can have no financial interest in his admission or treatment. The designee can have no investment interest in the hospital detaining or admitting the person. Except for employees of state hospitals and of the U.S… Department of Veterans Affairs, the detaining hospital may not employ the designee.
“Financial interest” is broadly defined, and includes ownership or holding of an equity or debt security, including, but not limited to, shares of stock in a corporation, interests or units of a partnership, bonds, debentures, notes, or other equity or debt instruments.
12. What are the legal standards for issuance of a temporary detention order?
A magistrate may issue an order of temporary detention if it appears from all evidence readily available that the person is mentally ill and in need of hospitalization and that the person presents an imminent danger to self or others as a result of mental illness, or is so seriously mentally ill as to be substantially unable to care for self, and the person is incapable of volunteering or unwilling to volunteer for treatment.
Before the magistrate can issue the order, an employee of the community services board (or its designee) must perform an in person evaluation of the patient.
13. Is there an alternate procedure for the issuance of an temporary detention order when there has not been a personal evaluation by the community services board or its designee?
Generally, there is no alternate procedure which sidesteps the required evaluation. The purpose of the emergency custody order is to bring the subject before the community services board, which is obligated to conduct the evaluation. However, a magistrate may issue a temporary detention order without an emergency custody order.
There is a narrow exception to the requirement of personal evaluation by the community services board. A magistrate may issue temporary detention order without a prior in-person evaluation if the subject has been personally examined within the previous seventy-two hours by the community services board or its designee, or when there is a significant physical, psychological or medical risk to the subject or others associated with conducting such evaluation.
14. How long can the subject be held under a temporary detention order?
The duration of temporary detention cannot exceed forty-eight hours prior to a hearing. If the forty-eight hour period terminates on a Saturday, Sunday or legal holiday, the person can may be detained until the next day which is not a Saturday, Sunday, or legal holiday.
15. How long is a temporary detention order valid?
The temporary detention order becomes void twenty four hours from its issuance if it is not executed by that time. The peace officer to whom it is required to return it unexecuted to the clerk of the issuing court or, if the clerk’s office is such office is not open, to any judge or magistrate thereof.
16. The subject could not be located within 24 hours after the temporary detention order was issued. Must the community services board examine the patient anew?
No. The magistrate may issue subsequent orders upon the original “petition” (i.e., request) of the community services board evaluator within ninety-six hours after the initial request to issue the temporary detention order is filed. However, the magistrate must again obtain the local community services board’s (or its designee’s) advice prior to issuing a subsequent order upon the original request for the temporary detention order.
There is a ninety-six hour limit on the initial evaluation and petition. Any petition which does not result in the execution of a temporary detention order within ninety-six hours after the petition is filed to issue the temporary detention order is void. To obtain a temporary detention order after this ninety-six hour limit, the entire process must be commenced anew.
17. When a patient is admitted on a temporary detention order, can the special justice discharge the patient before the hearing is conducted by the judge on the order?
The special justice may release the patient who has been admitted on a temporary detention order on the patient’s promise to return, with or without bond, if it appears from the evidence readily available that a release will not pose an imminent danger to the patient or others.
18. When a patient is admitted on a temporary detention order, can the hospital discharge the patient before the hearing is conducted by the judge on the order if the patient seems to have recovered? Can the physician be sued if the patient is discharged before the hearing and then harms someone?
The director of the hospital detaining the patient may also release him person prior to a hearing if it appears, based on an evaluation conducted by the psychiatrist or clinical psychologist treating him that he would not present an imminent danger to self or others if released.
While the statute permits both the special justice and the director of the hospital to discharge the patient before the full hearing is conducted, the judge is immune from suit for damages should the patient harm himself or others, but a mental health provider who releases the patient after he has been admitted pursuant to a temporary detention order does so at his or her own legal peril.
Va. Code Ann. § 54.1-2400.1 (B) states that “[a] mental health service provider has a duty to take precautions to protect third parties from violent behavior or other serious harm … when the client has orally, in writing, or via sign language, communicated to the provider a specific and immediate threat to cause serious bodily injury or death to an identified or readily identifiable person or persons, if the provider reasonably believes, or should believe according to the standards of his profession, that the client has the intent and ability to carry out that threat immediately or imminently. If the third party is a child, in addition to taking precautions to protect the child from the behaviors in the above types of threats, the provider also has a duty to take precautions to protect the child if the client threatens to engage in behaviors that would constitute physical abuse or sexual abuse as defined in § 18.2-67.10. The duty to protect does not attach unless the threat has been communicated to the provider by the threatening client while the provider is engaged in his professional duties.” The duty can be discharged by the provider who, among other things, seeks (not limits) a civil commitment hearing for the patient.
With regard to liability for the patient who, following discharge, kills himself rather than another, see Wackwitz v. Roy, 244 Va. 60, 418 S.E.2d 861 (1992) (allegations that decedent was of unsound mind when he killed himself negates the common law crime of suicide, thus removing the bar to a wrongful death action for malpractice in psychiatric treatment; judgment in favor of psychiatrist reversed).
Involuntary Hospitalization Hearing
[Va. Code Ann. § 37.2-814 (time, petitioner rights); Va. Code Ann. § 37.2-815 (Commitment hearing for involuntary admission; examination required. ); Va. Code Ann. § 37.2-816 (Commitment hearing for involuntary admission; preadmission screening report); Va. Code Ann. § 37.2-817 (Involuntary admission and outpatient treatment orders. ); Va. Code Ann. § 37.2-818 (Commitment hearing for involuntary admission; recordings and records); Va. Code Ann. § 37.2-819 (Order of involuntary admission forwarded to CCRE; firearm background check); Va. Code Ann. § 37.2-820 (place)]
19. When and where is the hearing held?
The commitment hearing must be held within forty-eight hours of when the peace officer takes the patient into custody (“executes” the temporary detention order). If the forty-eight hour period terminates on a Saturday, Sunday, or legal holiday, the patient is detained until the next day which is not a Saturday, Sunday, or legal holiday, but never longer than seventy-two hours, or ninety-six hours when such legal holiday occurs on a Monday or Friday.
The hearing may be held in any convenient place, within or beyond the jurisdiction of the special justice who presides at the hearing. The hearing is ordinarily held in the hospital detaining the patient.
20. What happens in the hearing?
The judge informs the patient that he can apply for voluntary admission and treatment. If the judge determines that the patient is willing and capable of voluntary admission and treatment, the judge must require that he accept voluntary admission for a minimum period of treatment. The minimum period cannot exceed seventy-two hours from the hearing time. The judge also requires the patient to give the hospital forty-eight hours’ notice before leaving the hospital. During the notice period the patient need not be discharged even if he demands to be discharged.
Right To Counsel; Delay To Engage A Lawyer.
If the patient is incapable of accepting or unwilling to accept voluntary treatment, the judge informs him of his right to a commitment hearing and right to counsel. If the patient is not represented by a lawyer, the judge appoints one law to represent him. if such person requests an opportunity to employ counsel, the court shall give him a reasonable opportunity to employ counsel at his own expense.
Written Explanation Of Rights; Enumeration Of Rights.
The patient is entitled to a written explanation of the involuntary commitment process and an explanation of the process by an attorney prior to the commitment hearing. The reverse of the patient’s copy of the temporary detention order includes this statement of rights, although in practice in the Richmond area, counsel delivers a separate, written statement of these rights.
The written explanation must include at least an explanation of the person’s right to retain private counsel or be represented by a court appointed attorney, to present any defenses including independent evaluation and expert testimony or the testimony of other witnesses, to be present during the hearing and testify, to appeal any certification for involuntary admission to the circuit court, and to have a jury trial on appeal.
The patient’s attorney is important in the process. He or she interviews the patient, the petitioner, the examiner described below, the community services board staff, and any other material witnesses to the extent possible before the hearing. He examines the diagnostic and other reports regarding the patient, and present evidence and witnesses, if any, on behalf of the patient. The attorney’s role is to represent the wishes of his client, to the extent possible. Note that these wishes may be contrary to, and sometimes absolutely inconsistent with, an objective determination of what is in the “best interest” of the patient
The community services board and petitioner for the issuance of the temporary detention order shall be given adequate notice of the place, date, and time of the commitment hearing. The petitioner is entitled to retain counsel at his own expense, to be present during the hearing, and to testify and present evidence. The petitioner shall be encouraged but shall not be required to testify at the hearing. However, a patient shall not be released solely on the basis of the petitioner’s failure to attend or testify during the hearing.
The judge must require that the patient be examined by a licensee of the Virginia Board of Medicine or Board of Psychology, but if such a psychiatrist or psychologist is not available, any mental health professional who is (i) licensed in Virginia through the Department of Health Professions and (ii) qualified in the diagnosis of mental illness may examine the patient.
The examiner must be able to provide an independent examination of the person and cannot be related by blood or marriage to the person, cannot be responsible for treating the person, cannot have any financial interest in the admission or treatment of the patient, and cannot have any investment interest in the hospital detaining or admitting the patient. Except for employees of state hospitals and of the U.S… Department of Veterans Affairs, the examiner cannot be employed by the hospital.
The examiner must certify that he has personally examined the patient and has probable cause to believe that the individual (i) is or is not so seriously mentally ill as to be substantially unable to care for himself or (ii) does or does not present an imminent danger to himself or others as a result of mental illness, and (iii) requires or does not require involuntary hospitalization or treatment. The judge can accept written certification of the examiner’s findings if the examination was made five days before the hearing and if the patient does not object to the written certification. The judge cannot decide the case until the examiner presents the report, orally or in writing.
Witnesses may appear electronically, and papers may be served electronically. Va. Code Ann. § 37.2-804.
Community Services Board prescreening Report.
Before the judge may commit a patient to an institution, the community services board where the patient resides is required to present a prescreening report. The report is admissible as evidence of the facts stated therein and states whether the person is so seriously mentally ill that he is substantially unable to care for himself, an imminent danger to himself or others as a result of mental illness and in need of involuntary hospitalization or treatment, and whether there is no less restrictive alternative to institutional confinement. The report states the community services board recommendations for care and treatment and, if not contested, constitute sufficient evidence upon which the court may base its decision.
The prescreening report is not required for patients sentenced and committed to the Department of Corrections.
Involuntary Admission To Hospital.
At the conclusion of a hearing, if the judge finds by clear and convincing evidence that the patient (i) presents an imminent danger to himself or others as a result of mental illness, or (ii) has been proven to be so seriously mentally ill as to be substantially unable to care for himself, and (iii) that there is no less restrictive alternative to involuntary confinement and treatment, the judge may order the person placed in a hospital or other facility for treatment. The confinement may not exceed 180 days from the date of the court order. The placement is in a hospital or other facility designated by the community services board where the patient was examined. If the community services board does not recommend a placement at the hearing, the judge can place the patient in any hospital or facility designated by the Commissioner of the Department of Mental Health. The patient must be released at the end of 180 days unless involuntarily committed by further petition and order or the patient applies for voluntary treatment.
The judge can order outpatient treatment if he determines the patient meets the criteria for involuntary hospitalization but that the patient is competent to understand the stipulations of treatment, expresses an interest in living in the community and agrees to abide by his treatment plan, and has the capacity to comply with the treatment plan. If the ordered treatment can be delivered on an outpatient basis and can be monitored by the community services board or designated providers, the judge can order outpatient treatment, day treatment in a hospital, night treatment in a hospital, outpatient involuntary treatment with anti-psychotic medication, or other necessary treatment.
21. The patient was ordered into outpatient treatment. How can I be sure he will comply?
If the patient does not adhere to the terms of outpatient treatment, and meets the criteria for the issuance of a temporary detention order, the judge may revoke the order for the outpatient care and, after a commitment hearing, order involuntary commitment for treatment at a hospital. The patient’s failure to comply with involuntary outpatient treatment as ordered by the court may be admitted into evidence in subsequent involuntary hospitalization hearings.
22. Are the medical records and court papers confidential? May they be released to other hospitals and doctors even when the patient does not authorize this?
The judge orders that copies of the patient’s relevant medical records can be released to the facility or program in which he is placed upon request of the treating physician or director of the facility or program. Otherwise, the court keeps the medical records, reports, and court documents pertaining to the hearing confidential if requested by the patient or his counsel, with access provided only upon court order for good cause shown. These records, reports, and documents are not subject to the Virginia Freedom of Information Act.
II. Surrogate Medical Consent
Consent is an important issue. Even a pro forma signed consent form will not necessarily ward off a successful action for malpractice based on the lack of consent to perform a procedure.
In Rizzo v. Schiller, 248 Va. 155 (1994), the Virginia Supreme Court considered the effect of a general “consent form.” The plaintiffs, a newborn child and his parents, filed an action against the doctor who assisted in the delivery of the child on allegations that the doctor was negligent in the use of obstetrical forceps and that he failed to obtain the mother’s informed consent for the use of forceps.
Mother was in active labor when admitted to the hospital. She signed a standardized consent form (reproduced in the Court’s opinion) upon admission. She authorized the doctor and the medical staff of the hospital “to perform diagnostic or therapeutic medical and surgical procedures on and to administer anesthetics to the patient.” About 15 hours later, after the mother’s unsuccessful attempts to deliver the child, her doctor told her that he was going to use forceps to deliver the baby. The mother testified that ‘before I could even get my composure together, ask what they were for, why, [the forceps] were inside me.'”
Two doctors testified at the trial that the infant’s subdural hematoma was caused by trauma from the forceps, and that the infant suffered cerebral palsy, and permanent disability, as a result of the injury. One doctor testified that the standard of care required the Defendant doctor to inform the patient about forceps and that she be given an opportunity to participate in the decision whether to use forceps. The patient testified that the defendant did not disclose any information to her about the use of the forceps and that he used the forceps without her consent.
Defendant doctor relied upon the quoted form for authorization. He also argued that failure to provide informed consent was not the legal (“proximate”) cause of the injuries. The Court disagreed with the Defendant, and remanded the case for a new trial on the issue of informed consent.
The quoted form was given short shrift; it “did not inform [the patient] of any specific procedures that [the doctor] intended to perform; nor did it inform her of foreseeable risks associated with any procedures or risks in failing to perform any procedures. … [T]he duty imposed upon a physician to obtain a patient’s informed consent requires more than simply securing the patient’s signature on a generalized consent form, similar to the form present here. The law requires informed consent, not mere consent, and the failure to obtain informed consent is tantamount to no consent.” 248 Va. at 159.
The Virginia Supreme Court found that the trial court made a mistake when it decided the lack of informed consent did not cause the injuries, because the jury “might have inferred that had [the patient] been informed of the possible consequences associated with the use of obstetrical forceps, she would have continued to assist in the birth process by ‘pushing’ and that [the infant] would have been born spontaneously. The plaintiffs also presented evidence from which the jury could have found that but for the use of the forceps, [the infant] would not have suffered the brain injury.” 248 Va. at 160.
Surrogate Family / Guardian / Agent Consent
An adult patient requires medical treatment other than involuntary admission to a psychiatric hospital. He is incapable of informed consent to the treatment. The doctor knows of no living will or health care power of attorney.
How can the physician obtain consent to such treatment?
23. Must I go to court for consent to treatment when there is no living will or health care power of attorney?
No. If the attending physician determines after personal examination that a patient does not have an advance directive, and suffers from a mental disorder or physical disorder which precludes communication or impairs judgment and thus cannot make an informed decision about treatment, he may provide to, withhold or withdraw treatment, including life prolonging procedures, upon the authorization of any of the following persons, in the specified order of priority, if the physician is not aware of any available, willing and competent person in a higher class: 1. guardian; 2. spouse; 3. adult child; 4. parent; 5. adult sibling; or 6. other relative of the patient in descending order of blood relationship.
24. If there is a disagreement among the family about the treatment, must a court intervene to settle it?
No. If there is a disagreement among the persons in subdivisions 3 through 6 with equal decision making authority, the attending physician may rely on the authorization of a majority of the reasonably available members of that class.
25. May the attending physician act alone in the process? Is there a requirement for a second opinion?
Before withholding or withdrawing treatment for which surrogate authorization has been obtained or will be sought under this procedure, and before, or as soon as practical thereafter, the initiation of treatment for which surrogate authorization has been obtained or will be sought under this procedure, and for at least every 180 days while the treatment continues, the attending physician must have written certification that the patient cannot make an informed decision regarding the treatment from a second licensed physician or clinical psychologist who has personally examined the patient. If the authorization is for treatment of a mental illness, the second physician or licensed clinical psychologist shall not be otherwise currently involved in the treatment of the patient.
26. Is this procedure available for all medical procedures and treatments?
No. The procedures do not apply to authorization of non-therapeutic sterilization, abortion, or psychosurgery.
While the procedures cannot be used to admit the patient to a mental retardation facility or psychiatric hospital, the process may be employed to authorize a specific treatment or course of treatment for a person who has been lawfully admitted to a mental retardation facility or psychiatric hospital.
The writer does not believe that the procedure may be used for consent to involuntary anti-psychotic medications or electroconvulsive treatment, even when the patient is involuntarily committed to a psychiatric hospital.
27. The patient’s last words before slipping into a coma were that he did not want a blood transfusion because of deeply held religious views. Without the transfusion, he will surely die; with it, he will surely live a full life. He is a respected member of the local bar association committee dedicated to plaintiff’s malpractice claims.
His guardian, who is also his wife, is not an adherent to these views, and presents a guardianship certificate and written consent to the blood transfusion. May the transfusion be delivered based on her consent?
Apparently not.
The surrogate consent law (Va. Code Ann. § 54.1-2986) does not authorize providing, continuing, withholding or withdrawing treatment if the provider of the treatment knows that such an action is protested by the patient. The statute specifies that no person shall authorize treatment, or a course of treatment, if such person knows, or upon reasonable inquiry ought to know, that the treatment is contrary to the religious beliefs or basic values of the patient unable to make a decision, whether expressed orally or in writing.
Judicial Medical Consent
An adult patient needs medical care, but is incapable of consenting to it. There is no guardian, agent, or family member available to give consent. A special justice can consent to treatment on behalf of an incapable patient pursuant to Va. Code Ann. § 37.2-1104.
28. The patient’s last words before slipping into a coma were that he did not want a blood transfusion because of deeply held religious views. Without the transfusion, he will surely die; with it, he will surely live a full life. He is a respected member of the local bar association and is the chair ex officio of the committee dedicated to plaintiff’s malpractice claims.
His guardian, who is also his wife and the chair of the local bar association of trial lawyers, is not an adherent to these views, and presents a guardianship certificate and written consent to the blood transfusion, prepared by the parties daughters, one of whom is a board certified psychiatrist, internist, and neurologist, and the other one of whom was the attorney who, before becoming a board certified near psychiatrist, had been lead counsel in the Rizzo case.
If the transfusion cannot be delivered on the written consent of the guardian wife and both daughters (witnessed by the other child, the minister of the patient’s church), could a court consent to the blood transfusion?
Apparently, yes.
Va. Code Ann. § 37.2-1101 (G), which is not in the same part of the Virginia Code dealing with surrogate family medical consent (Va. Code Ann. § 54.-2986), permits a special justice or other judge to authorize a specific treatment or course of treatment if it is clearly and convincingly proven that the person is incapable of making an informed decision on his own behalf or of communicating such a decision due to a disorder, and that the proposed treatment is in the best interest of the person. In an emergency, to prevent death, disability, or a serious irreversible condition, consent may be provided immediately, and without a formal hearing, see Va. Code Ann. § 37.2-1104.
The special justice must consider the patient’s right to rely on non-medical, remedial treatment in the practice of religion in lieu of medical treatment, and generally, the special justice cannot authorize a proposed treatment or course of treatment which is more likely than not to be contrary to the patient’s religious beliefs or basic values. However, the special justice is authorized to provide such care when it is necessary to prevent death or a serious irreversible condition, see Va. Code Ann. § 37.2-1101 (G)(4).
29. What is the process of obtaining a judicial hearing for medical consent, other than for anti-psychotic medications or electroconvulsive therapy (SEE # 30, BELOW), when there is no emergency?
1. The physician completes three copies of the Petition And Proposed Order For Medical Consent. These forms should be obtained from a central location in the hospital. The physician must sign the original form and must include his beeper number.
2. The physician or nurse delivers one copy to the patient, noting in the chart and on the form the date and time of delivery.
3. The physician or nurse contacts the special justice to advise of the foregoing and to schedule a time for the hearing.
4. The patient must be advised of the time of the hearing. If the patient is in the hospital, a copy need not be delivered to family members, but if possible, they should be notified of the petition and the time of the hearing, and invited to attend.
5. The physician must be notified of the date and advised that he must be available to testify, either in person or by telephone, and that a lawyer for the patient will contact him to discuss the petition.
6. A hearing is conducted and consent is provided or not, depending upon the evidence.
30. What is the process of obtaining a judicial hearing for medical consent for anti-psychotic medications or ECT when the patient objects to such treatment?
Va. Code § 37.2-1102 specifies certain procedures as to which a court may not consent for adults, or as to which special procedures are required, viz:
1. Nontherapeutic sterilization, abortion, or psychosurgery. [See Va. Code § 54.1-2976 regarding sterilization procedures for incapacitated adults.]
2. Admission to a training center or a hospital. However, the court may issue an order under § 37.2-1101 authorizing treatment of a person whose admission to a training center or hospital has been or is simultaneously being authorized under § 37.2-805, 37.2-806, 37.2-807, or §§ 37.2-809 through 37.2-813, or of a person who is subject to an order of involuntary admission previously or simultaneously issued under §§ 37.2-814 through 37.2-819 or of Chapter 9 (§ 37.2-900 et seq.) 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 admission, including involuntary outpatient treatment, previously or simultaneously issued under §§ 37.2-814 through 37.2-819 or Chapter 9 (§ 37.2-900 et seq.) 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 administration of an authorized treatment for a physical disorder.
The following procedure is suggested when the patient has been detained for civil commitment hearing and expected to refuse medications offered in the hospital, or to require electroconvulsive therapy ( “shock” or “ECT” treatment, concerning which, see here and here; for alternative treatment, especially for depression, see vagus nerve stimulation):
1. The patient must first or simultaneously be involuntarily admitted and confined to a hospital. See the discussion concerning the same, ante.
2. The physician completes three copies of the Petition And Proposed Order For Anti-Psychotic Medication or ECT. These forms should be obtained from a central location in the hospital. The physician must sign the original form and must include his beeper number.
3. The physician or nurse delivers one copy to the patient, noting in the chart and on the form the date and time of delivery.
4. The physician or nurse contacts the special justice to advise of the foregoing and to schedule a time for the hearing.
5. The patient must be advised of the time of the hearing. If the patient is in the hospital, a copy need not be delivered to family members, but if possible, they should be notified of the petition and the time of the hearing, and invited to attend.
6. The physician must be notified of the date and advised that he must be available to testify, either in person or by telephone, and that a lawyer for the patient will contact the physician to discuss the proceeding.
7. A hearing is conducted and consent is provided or not, depending upon the evidence.
III. Infectious Airborne Diseases
The patient, a homeless person in her thirties, is seen in the emergency room. The emergency room doctor, who is taking a break from his tenured professorship at a prestigious medical school in Boston where he specializes in public health and multi-drug resistant strains of tuberculosis, strongly believes the patient to suffer from a drug resistant strain of tuberculosis which is more than abnormally contagious. It is lethal in 90% of the known cases when untreated, but has a 99.9% cure rate with intensive “cocktailed” oral medications which have been certified safe and effective, and have no side effects other than increased intelligence, beauty, and healthy longevity.
She states she is too busy to take medicine. She refuses the offer of free treatment in a luxury suite adjacent to the hospital. She refuses a mask, which she fears will interfere with her smoking. History reveals she contracted the disease while living in homeless shelters up and down the east coast of the United States. She travels with her three infant children who are not patients of the physician. The patient and her children sleep on the same mattress when a mattress is available.
She is otherwise healthy, and the medical standard of care does not require any procedure to prevent her death, disability, or an irreversible medical condition in the next twenty four hours.
A psychiatrist who evaluated the patient in the emergency room states she is perfectly competent. She understands that treatment will save her, and the lack of treatment will result in her death, and the probable infection of her family, her fellows in the homeless shelters, and possibly the entire City of Richmond. Between convulsive coughing spasms, she manages to gasp to the psychiatrist, in the general presence of several trial lawyers whose elderly parents have just been discharged from the hospital to return to a local nursing home, “I don’t care what happens to anyone else. We all have to die sometime, right? Move over and let me leave; I want to go beg for money. I think I’ll try that nursing home, the one where all those old people are going. They’re look like easy touches; it’s a shame they’re so sick, huh? Say, you got a light for my cigarette?”
31. Can a special justice issue an emergency order to detain the patient?
No.
32. Can a magistrate issue an emergency order to detain the patient?
33. Can anything be done to protect the woman, her children, the people in the nursing home, and everyone else in the Commonwealth?
Yes, if she presents during regular business hours.
No, if she presents at any other time (see Question 34, below).
On paper, under Va. Code Ann. § 32.1-48.02, upon receiving medical evidence that a patient is engaging in acts which a patient, who has been informed that he is infected with a communicable disease, knows may infect other people without taking appropriate precautions to protect the health of the other patients, the Commissioner of Health or his designee may conduct an investigation through an examination of the records of the Department and other medical records to determine the disease status of the individual.
If the investigation indicates that the patient has a communicable disease caused by an airborne microorganism which causes serious disease and can result in death and that the patient has refused or failed to adhere to a prescribed course of treatment and, despite counseling, is engaging in conduct that places uninfected persons at risk of contracting such airborne communicable disease, the Commissioner or his designee may issue an outpatient treatment order for such patient to report to the local or district health department in the jurisdiction in which he resides to receive appropriate outpatient treatment and education concerning his disease.
If the investigation indicates that the patient has a communicable disease caused by an airborne microorganism which causes serious disease and can result in death and, despite documented and appropriate counseling, is engaging in conduct that unreasonably places uninfected persons at risk of contracting such airborne communicable disease and medical data demonstrate that he poses an imminent threat to the health of others, the Commissioner may issue an emergency order requiring such patient to be taken immediately into custody and placed, for a period, not to exceed forty-eight hours, in the least restrictive, willing facility providing protection of the health of others and appropriate treatment to the patient if:
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The patient has refused or failed to report to the local health department after having been ordered to do so pursuant to subsection C, for appropriate outpatient treatment and education concerning his disease; or
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The patient has a documented history of failure to adhere to a prescribed course of treatment; or
- Documentation exists that the patient has indicated that he will not comply with the prescribed treatment.
34. Thank goodness! It’s 9:30 Monday night. The patient has presented to the emergency room, and is now attempting to leave with her three infants and a box of tissues. Whom may I call to obtain the Commissioner’s emergency, temporary detention order?
Nobody. There isn’t a commissioner, or his designee, in the house.
Contact information for the Division of Tuberculosis Control is:
Division of TB Control
James Madison Building, First Floor
109 Governor Street
Richmond, Virginia 23219
Telephone: 804-864-7906
Fax: 804-371-0248
On Monday, June 19, 2006, at 9:49:19 PM., a call to these numbers responded with recorded statements to leave message.
The Virginia Health Department Division of Tuberculosis Control website provides useful references to the process and procedure to implement the public protections from infectious airborne diseases provided for in the law. However, the protections are not available for practical purposes, and simply don’t exist in Virginia, except between the hours of 8:30 and 4:30 p.m., Monday through Friday, when the Division is available.
The 24 hour number for any inquiry in the City of Richmond, Virginia, as of May 9, 2006, is 804-646-5100. This is the Division of Emergency Services. If the physician suspects that the subject is infected and wishes to have him detained for services, then the physician should call this number and ask for the “on call Richmond Health Department Inspector,” who will then call the physician and who has the authority to intervene, according to the Richmond City Health District Program Director in a conversation with him on May 9, 2006.
35. Is this really a problem? How often does this occur? Why should the Commonwealth staff a person who can comply with the law?
According to a copyrighted story published by Reuters on March 24, 2000, the World Health Organization (WHO) has reported a 50% increase in drug resistant TB in Denmark and Germany, with such cases doubling in New Zealand. According to the report significant increases have registered in several other developed and developing countries, among them Israel, Italy, China, India, Iran, Russia, and Mexico.
In the United States, TB by age, 2004:
See the Centers for Disease Control and Prevention site,
Marcos Espinal, leader of the team which issued the report, said that “[w]e suspected that drug resistance was worsening in many parts of the world when we compiled the first report in 1997. This report confirms our worst fears.” Dr. David Heymann, WHO’s executive director of communicable diseases, was quoted by Reuters as stating that some of the worst affected countries were in Latin America. “If we continue to rely on these countries for labor in an increasingly tight labor market, it is likely that some transmission of the illness will occur in this country from migrant workers.”