HB 934 — Prisoners; medical and mental health treatment of those incapable of giving consent.

SESSION history | hilite | pdf | print version 18102531D18107816D HOUSE BILL NO.

934 HouseAMENDMENT AmendmentsIN inTHE [NATURE ]OF --A SUBSTITUTE (Proposed by the Senate Committee on Finance on February 1,28, 20182018) (Patron Prior to Substitute--Delegate Hope) A BILL to amend and reenact §§ 17.1-406, 17.1-410, 37.2-803, and 37.2-80353.1-68 of the Code of Virginia and to amend the Code of Virginia by adding in Article 7 of Chapter 3 of Title 53.1 sections numbered 53.1-133.04 and 53.1-133.05, relating to medical and mental health treatment of prisonersprisoners; incapable of giving consent.

----------standards; Patron Prior to Engrossment--Delegate Hope ---------- Referred to Committee for Courts of Justice ---------- Be it enacted by the General Assembly of Virginia:

prisoners incapable of giving consent.

Be it enacted by the General Assembly of Virginia:

That §§ 17.1-406, 17.1-410, 37.2-803, and 37.2-80353.1-68 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding in Article 7 of Chapter 3 of Title 53.1 sections numbered 53.1-133.04 and 53.1-133.05 as follows:

§ 53.1-68.

Minimum standards for local correctional facilities, lock-ups and personnel, health inspections.

A.

The Board shall establish minimum standards for the construction, equipment, administration and operation of local correctional facilities, whether heretofore or hereafter established.

However, no minimum standard shall be established that includes square footage requirements in excess of accepted national standards.

The Board or its agents shall conduct at least one unannounced inspection of each local facility annually.

However, in those years in which a certification audit of a facility is performed and the facility is in compliance with all the standards, the Board may elect to suspend the unannounced inspection based upon that certification audit and the history of compliance of the facility with the standards promulgated in accordance with this section, except in any year in which there is a change in the administration of a local or regional jail.

The Board shall also establish minimum standards for the construction, equipment and operation of lock-ups, whether heretofore or hereafter established.

However, no minimum standard shall be established that includes square footage requirements in excess of accepted national standards.

B.

Standards concerning sanitation in local correctional facilities and procedures for enforcing these standards shall be promulgated by the Board with the advice and guidance of the State Health Commissioner.

The Board, in conjunction with the Board of Health, shall establish a procedure for the conduct of at least one unannounced annual health inspection by the State Health Commissioner or his agents of each local correctional facility.

The Board and the State Health Commissioner may authorize such other announced or unannounced inspections as they consider appropriate.

C.

Standards concerning mental health services in local correctional facilities shall be promulgated by the Board with the advice of and guidance from the Commissioner of Behavioral Health and Developmental Services.

For purposes of this subsection, mental health services shall include substance abuse services.

D.

The Department of Criminal Justice Services, in accordance with § 9.1-102, shall establish minimum training standards for persons designated to provide courthouse and courtroom security pursuant to the provisions of § 53.1-120 and for persons employed as jail officers or custodial officers under the provisions of this title.

The sheriff shall establish minimum performance standards and management practices to govern the employees for whom the sheriff is responsible.

D.

E.

The superintendent of a regional jail or jail farm shall establish minimum performance standards and management practices to govern the employees for whom the superintendent is responsible.

TheUpon courtfiling shallthe authorizepetition, such treatment in a facility designated by the sheriff or administrator uponshall finding,provide ona thecertified basiscopy of clearsuch andpetition convincingto evidence, that the prisoner for whom treatment is incapable,sought eitherand, mentallyif orthe physically,identity ofand givingthe informedwhereabouts consentof tothe suchprisoner's treatmentspouse andor thatnext theof proposedkin treatmentare isknown, into the bestspouse interestsor next of thekin. prisoner.

The court shall authorize such treatment in a facility designated by the sheriff or administrator upon finding (i) 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;

(ii) that the facility designated for treatment by the sheriff or administrator has sufficient resources to safely administer the treatment and to respond to any adverse side effects that might result from such treatment;

and (iii) that no person authorized to make medical decisions on the prisoner's behalf is available to authorize such treatment.

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 servicesservices, [ , except with respect to injury or death resulting from gross negligence or willful and wanton misconductmisconduct. ] .

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 consentconsent, [ , 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.

2.

That the standards required to be promulgated pursuant to subsection C of § 53.1-68 of the Code of Virginia, as amended by this act, shall not be subject to the Administrative Process Act (§ 2.2-4000 et seq.

of the Code of Virginia).