COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Felton 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 COURT OF BUCHANAN COUNTY 

Keary R. Williams, Judge 

 Terrence Shea Cook (T. Shea Cook, P.C., on brief), for appellant. 

 Russell Vern Presley, II (Street Law Firm, LLP, on brief), for 

appellee. 

 Linda Cavuoto (appellant) appeals that portion 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 erred in compelling her to submit 

to the examination and evaluation without making the 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 participated 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 court is not the subject of this appeal. 
 - 2 - 

BACKGROUND 

 Appellant is a fifty-one-year-old woman suffering from morbid obesity and depression. She 

had been disabled for some three years when she moved 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 appellant in November 2002 after determining she was in need of 

adult protective services. 

 Following a fire in the house in which appellant and her husband resided, DSS obtained an 

emergency court order on December 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, 2003, DSS filed a Petition for Treatment and Detention pursuant to Code 

§ 37.1-134.21 seeking a court order authorizing placement of appellant in a nursing home to provide 

her with care and treatment. DSS asserted that appellant was incapable of making informed health 

care decisions because of her depression and was incapable of properly caring for herself. DSS also 

asserted that appellant had been uncooperative while she was a patient at Heritage Hall. 

 On December 22, 2003, the trial 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 conducted on December 5, 2003 at Heritage Hall. 

Based on her evaluation of appellant, she opined 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 emergency order “if an adult lacks the capacity to consent to 

receive adult protective services.” 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 may be renewed once for a five-day period upon a 

showing to the court that continuation 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 depression and of treatment she received prior to moving to Virginia. 

Schleifer noted that appellant expressed suicidal thoughts and feelings of “helplessness and 

hopelessness” as a result of her deteriorating health and financial circumstances. Although she 

testified that appellant suffered “from depression brought on by major life stressors,” Schleifer 

opined that appellant’s depression did not impair 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 diagnostic work up with regard to [her medical 

condition].” 

 After hearing the evidence, the trial court found “that despite 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 emergency protective order. 

Nevertheless, relying on Schleifer’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 examination 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 that the trial court erred in ordering her, over her objection, to 

undergo a comprehensive medical examination and evaluation at the University of Virginia Medical 

Center. She argues that because the trial court found that she was capable of making 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 require her to undergo the 

examination without her consent. 

 In general, a mentally competent adult has the right to refuse medical treatment. See Cruzan 

v. Director, Missouri Dept. of Health, 497 U.S. 261, 262 (1990) (recognizing the Fourteenth 

Amendment guarantee of the right to refuse medical treatment) (citing Jacobson v. Massachusetts, 

197 U.S. 11, 24-30 (1905) (balancing an individual’s liberty interest in declining 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 unquestionable 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 fundamental liberty interest must be 

balanced with the State’s interests in protecting 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 § 37.1-134.21, “[t]he General Assembly provided for involuntary medical 

treatment in very limited circumstances, 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 touching 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 (citing 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 (1980) (holding that physician’s performing surgery without a patient’s 

informed consent constitutes battery). 
 - 5 - 

“Code § 37.1-134.21 describes the procedures to be followed 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 withdrawal of a specific treatment 

or course of treatment for a mental or physical disorder, if it finds 

upon clear and convincing evidence that (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 authorized 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 treatment is in the best interest of 

[appellant] . . . . 

Code § 37.1-134.21(H). 
 - 6 - 

 In terms of making informed health care decisions under Code § 37.1-134.21, we make 

no distinction between a medical evaluation or examination5 on the one hand, and medical 

treatment6 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 that nursing home to her husband’s care, but then 

ordered her to undergo a comprehensive examination and evaluation at the University of 

Virginia Medical Center. 

 In reviewing a trial court’s order for involuntary 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 weight to get better.” It further stated that 

[A]s part of the treatment order the 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 examination.” Dorland’s Illustrated Medical Dictionary

630 (29th ed. 2000). 

6

 Medical “treatment” is defined as “the management 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 trial court must find “[t]hat the 

person who is the subject of the petition 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.”7

 Here, the trial court explicitly found that “despite her 

depression, [appellant was] capable of making informed health care decisions . . . .” 

DSS concedes on brief that the trial court failed to make the required finding pursuant to 

Code § 37.1-134.2(H). It contends, however, that the trial court had authority to order appellant 

to undergo the comprehensive medical examination under its general equity jurisdiction. 

We find no authority for the proposition advanced by DSS. The authority of the trial 

court to order medical treatment is defined by the statute, 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 jurisdiction 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 the Commonwealth’s interests in protecting its 

citizens with the individual’s constitutionally protected liberty interest against compelled medical 

procedures. Absent a finding pursuant to Code § 37.1-134.21 that appellant was incapable of 

making an informed health care decision or communicating that decision, the trial court lacked 

authority, over her objection, to order her confined for an indefinite period to undergo a 

comprehensive health examination and evaluation. 

 7

 Compare with definition of “incapacitated person” in Code § 37.1-134.6, and the 

provisions of Code § 37.1-134.14. 
 - 8 - 

We conclude from the record before us that 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, therefore, reverse and vacate that 

portion of the judgment of the trial court dated March 1, 2004 ordering appellant to “attend the 

comprehensive evaluation at the University of Virginia Medical Center scheduled by DSS.” 

Reversed.