COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Fe lton and Retired Judge Strickland * Argued at Salem, Virginia

LINDA CAVUOTO OPINION BY v. Record No. 0596-04-3 JUDGE WALTER S. FELTON, JR. NOVEMBER 23, 2004 BUCHANAN COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT C OURT OF BUCHANAN COUNTY Keary R. Williams, Judge Terrence Shea Cook (T. Shea Cook , P.C., on brief), for appellant.

Russell Vern Presle y, II (Street Law Firm, LLP, on brief), for appellee.

Linda Cavuoto (appellant) appeals that por tion of the judgment of the Circuit Court of Buchanan County requiring her to undergo medical examination and evaluation at the University of Virginia Medical Center. Appellant contends that the trial court e rred in compelling her to submit

to the examination and evalua tion without making th e necessary finding pursuant to Code § 37.1-134.21(H) that she was incapable of making an informed decision regarding her health. We agree and reverse that portion of the judgment of the trial court. 1

* Retired Judge Diane McQ. Strickland partic ipated in this case by designation pursuant to Code § 17.1-400(C).

1 The trial court also ordered appellant to be released from the Heritage Hall nursing home where she had been committed under an adult protective services emergency order. That portion of the judgment of the trial cour t is not the subjec t of this appeal.- 2 - BACKGROUND Appellant is a fifty-one-year-o ld woman suffering from morbid obesity and depression. She

had been disabled for some thre e years when she move d with her husband to Virginia. She had been bedridden for more than two years. The Buchanan County Department of Social Services (DSS) became involved with appella nt in November 2002 after de termining she was in need of adult protective services. Following a fire in the house in which appellant and her husb and resided, DS S obtained an emergency court order on D ecember 3, 2003, committing appellant involuntarily to Heritage Hall, a nursing home. 2 On December 9, 2003, the trial court extended the temporary order for an additional five days. 3 On December 15, 20 03, DSS filed a Petition for Treatmen t and Detention pu rsuant to Code § 37.1-134.21 seeking a court order authorizing plac ement of appellant in a nursing home to provide

her with care and treatment. DSS a sserted that appellant was incapab le of making informed health care decisions because of her depression and was inca pable of properly caring for herself. DSS also asserted that appellant had been uncooperativ e while she was a patien t at Heritage Hall. On December 22, 2003, the tria l court received evidence ore tenus on the petition. Caroline Thompson Schleifer, a licensed professional counselor, testified as to the results of a psychosocial evaluation of appellant she conduc ted on December 5, 2003 at Heritage Hall. Based on her evaluation of appellant, she opine d that appellant understood the purpose of the

2 Pursuant to Code §§ 63.2-1608 and -1609, a court may order involuntary adult protective services through an em ergency order “if an adult lack s the capacity to consent to receive adult protective serv ices.” Code § 63.2-1608(A).

3 “Adult protective services may be provided through an appropriate court order only for a period of 15 days. The original order ma y be renewed once for a five-day period upon a showing to the court that con tinuation of the original order is necessary to remove the emergency.” Code § 63.2-1609.- 3 - evaluation and provided pertinent information regarding her medical history. Appellant informed Schleifer of her history of depre ssion and of treatment she received prior to moving to Virginia. Schleifer noted that appellant expressed suicid al thoughts and feelings of “helplessness and hopelessness” as a result of her deteriorating he alth and financial circumstances. Although she testified that appellant suffered “from depressi on brought on by major life stressors,” Schleifer opined that appellant’s depression did not impa ir her ability to make informed decisions concerning her health. She advised the trial court that appellant needed additional evaluation at a more comprehensive medical center; that Heritage Hall was not meeting all of appellant’s medical needs; and that “[appellant] may be a good candidate for going to the University of Virginia and having a complete orthopedic and di agnostic work up with regard to [her medical condition].” After hearing the evid ence, the trial court found “that de spite her depression, appellant is capable of making informed health care decisions.” It ordered her released to her husband’s care from the nursing home, where she had been confined pursuant to the emerge ncy protective order. Nevertheless, relying on Schlei fer’s recommendation of the need for further evaluation and her opinion that Heritage Hall could not meet appellant’s needs, the trial court ordered appellant to undergo a comprehensive ex amination and evaluation to address her depression and obesity and that DSS schedule an appointment at the University of Virginia Medical Center for that purpose.

ANALYSIS On appeal, appellant contends th at the trial court erred in orde ring her, over her objection, to undergo a comprehensive medical ex amination and evaluation at the University of Virginia Medical Center. She argues that because the trial court found that she was capable of ma king informed health care decisions, it lacked authority pursuant to Code § 37.1-134.21 to order her to undergo the

medical examination and evaluation. Stated differently, she contends that the trial court failed to- 4 - make the necessary finding pursuant to Code § 37.1-134.21(H) to requi re her to undergo the

examination without her consent. In general, a mentally competent adult has the right to refuse me dical treatment. See Cruzan v. Director, Missouri Dept. of Health , 497 U.S. 261, 262 (1990) (recognizing the Fourteenth Amendment guarant ee of the right to refuse medical treatment) (citin g Jacobson v. Massachusetts , 197 U.S. 11, 24-30 (1 905) (balancing an individual’s liber ty interest in d eclining an unwanted smallpox vaccine against the State’s interest in preventing disease)). “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others , unless by clear and unque stionable authority of law.” United States v. Charters , 829 F.2d 479, 490-91 (4th Cir. 1987) (quoting Union Pacific Railway

Co. v. Botsford , 141 U.S. 250, 251 (1890)). 4 However, this fundamenta l liberty interest must be balanced with the State’s interests in protect ing persons who cannot make informed health decisions, either because they are incapable of making such decisions or incapable of communicating such decisions. Cruzan , 497 U.S. at 262. In enacting Code § 37.1-134.2 1, “[t]he General Assembly provided for involuntary medical treatment in very limited circumst ances, where such treatment is determined to be in the best interests of a person who is unable to give an informed consent to treatment.” Mullins v.

Commonwealth , 39 Va. App. 728, 732, 576 S.E.2d 770, 771-72 (2003) (emphasis added).

4 The right to be free of undesired physical t ouching originates in early law, including the English common law, and “is reflected in the tort of battery which protects the individual against even the slightest unconsented touching.” Charters , 829 F.2d at 490 (citi ng W. Keeton, et al. Prosser and Keeton on The Law of Torts § 9 p. 39 (5th ed. 1984)); see Pugsley v. Privette , 220 Va. 892, 263 S.E.2d 69 (19 80) (holding that physician’s perf orming surgery without a patient’s informed consent constitutes battery).- 5 - “Code § 37.1-134.21 describes the procedures to be fo llowed and the findings a court is to make prior to authorizing such treatment.” Id. Code § 37.1-134.21(A) provides that the court may order [t]he provision, withholding or with drawal of a specific treatment or course of treatment for a mental or physical disorder, if it finds upon clear and convincing evidence th at (i) the person is either incapable of making an informed decision on his own behalf or is incapable of communicating such a decision due to a physical or mental disorder and (ii) the proposed action is in the best interest of the person. Code § 37.1-134.21(H) requires the trial court to make specific findings as to an individual’s capability to make informed health decisions before it can compel medical treatment without that person’s consent. Before ordering an individual to undergo a comprehensive medical evaluation, the trial court must determine: 1. That there is no legally author ized person available to give consent [for her]; 2. That [appellant] is incapable either of making an informed decision regarding a specific treatment or course of treatment or is physically or mentally incapable of communicating such a decision; 3. That [appellant] is unlikely to become capable of making an informed decision or of communicating an informed decision with the time required for decision; and 4. That the proposed course of treatm ent is in the best interest of [appellant] . . . . Code § 37.1-134.21(H).- 6 - In terms of making informed health car e decisions under Code § 37.1-134.21, we make

no distinction between a medical evaluation or examination 5 on the one hand, and medical

treatment 6 on the other, both of which may involve intrusive procedures. The trial court denied DSS’s petition to detain appellant for further treatment at Heritage Hall, and ordered her to be released from th at nursing home to her husband’s care, but then ordered her to undergo a comprehensive examin ation and evaluation at the University of Virginia Medical Center. In reviewing a trial court’s order for invol untary medical care entered pursuant to Code § 37.1-134.21, “‘we are bound by the trial court’s findings of historical fact unless ‘plainly wrong’ or without evidence to support them.’” Mullins , 39 Va. App. at 732, 576 S.E.2d at 772 (quoting McGee v. Commonwealth , 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) ( en banc )). After hearing the evidence, the trial court concluded that a comprehensive medical

examination and evaluation at the University of Virginia Medical Center was in appellant’s best interest, explaining that she had “to lose wei ght to get better.” It further stated that [A]s part of the treatment order th e Court is going to order that you go to the University of Virginia for this comprehensive examination. If it takes a day, fine; if it’s [sic] take a week, fine; if it takes a month, fine. I want this comprehensive evaluation. While the trial court’s determination of the need for a comprehensive medical examination is well founded, it is not enough that the examination be in appellant’s best

5 Medical “examination” is defined as the “inspection, palpation, auscultation, percussion, or other means of investigation, especially for diagnosing disease, qualified according to the methods employed as physical examination, radiologic examination, diagnostic imaging examination, or cystoscopic examinati on.” Dorland’s Illustrated Medical Dictionary 630 (29th ed. 2000).

6 Medical “treatment” is defined as “the mana gement and care of a patient for the purpose of combating disease or disorder.” Dorland’s at 1868.- 7 - interests. Code § 37.1-134.21(H) specifically provides that the tr ial court must find “[t]hat the person who is the subject of the petition is in capable either of making an informed decision regarding a specific treatment or course of treatment or is physi cally or mentally incapable of communicating such a decision.” 7 Here, the trial c ourt explicitly found that “despite her depression, [appellant was] capable of maki ng informed health care decisions . . . .”

DSS concedes on brief that the trial court fail ed to make the required finding pursuant to Code § 37.1-134.2(H). It contends, however, that th e trial court had author ity to order appellant to undergo the comprehensive medical examin ation under its general equity jurisdiction. We find no authority for the proposition advanc ed by DSS. The authority of the trial court to order medical treatment is defined by the st atute, not by the broader principles of equity. “The rule is well established in Virginia that when the legislature has enacted a comprehensive statutory scheme that encompasses a matter that was not formerly within the purview of the common law, a court, when exercising the juri sdiction conferred under that statutory scheme, may not proceed in derogation of the statutory scheme.” Willis v. Gamez , 20 Va. App. 75, 82, 455 S.E.2d 274, 278 (1995) (citing Malpass v. Morgan , 213 Va. 393, 398, 192 S.E.2d 794, 798 (1972)). To grant courts such authority under general equity powers would eviscerate the narrowly drawn statutory scheme balancing th e Commonwealth’s interests in protecting its citizens with the individual’s constitutionally prot ected liberty interest against compelled medical procedures. Absent a finding pursuant to C ode § 37.1-134.21 that appellant was incapable of making an informed health care decision or comm unicating that decision, the trial court lacked authority, over her objection, to order her conf ined for an indefinite period to undergo a comprehensive health examination and evaluation.

7 Compare with definition of “incapac itated person” in Code § 37.1-134.6, and the provisions of Code § 37.1-134.14.- 8 - We conclude from the record before us th at the judgment of the trial court ordering appellant to undergo a comprehensive medical examination and evaluation was plainly wrong and not supported by the evidence. See Code § 8.01-680. We, theref ore, reverse and vacate that portion of the judgment of the trial court dated March 1, 2004 ordering appellant to “attend the comprehensive evaluation at th e University of Virginia Medi cal Center scheduled by DSS.”

Reversed.