Virginia Code 54.1-2970: Medical treatment for certain persons incapable of giving informed consent
When a delay in treatment might adversely affect recovery, a licensed health professional or licensed hospital shall not be subject to liability arising out of a claim based on lack of informed consent or be prohibited from providing surgical, medical or dental treatment to an individual who is receiving service in a facility operated by the Department of Behavioral Health and Developmental Services or who is receiving case management services from a community services board or behavioral health authority and who is incapable of giving informed consent to the treatment by reason of mental illness or intellectual disability under the following conditions:
Terms Used In Virginia Code 54.1-2970
- Board: means the Board of Medicine. See Virginia Code 54.1-2900
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- in writing: include any representation of words, letters, symbols, numbers, or figures, whether (i) printed or inscribed on a tangible medium or (ii) stored in an electronic or other medium and retrievable in a perceivable form and whether an electronic signature authorized by Chapter 42. See Virginia Code 1-257
- Person: includes any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof. See Virginia Code 1-230
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- State: when applied to a part of the United States, includes any of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, and the United States Virgin Islands. See Virginia Code 1-245
1. No legally authorized guardian or committee was available to give consent;
2. A reasonable effort is made to advise a parent or other next of kin of the need for the surgical, medical or dental treatment;
3. No reasonable objection is raised by or on behalf of the alleged incapacitated person; and
4. Two physicians, or in the case of dental treatment, two dentists or one dentist and one physician, state in writing that they have made a good faith effort to explain the necessary treatment to the individual, and they have probable cause to believe that the individual is incapacitated and unable to consent to the treatment by reason of mental illness or intellectual disability and that delay in treatment might adversely affect recovery.
The provisions of this section shall apply only to the treatment of physical injury or illness and not to any treatment for a mental, emotional or psychological condition.
Treatment pursuant to this section of an individual’s mental, emotional or psychological condition when the individual is unable to make an informed decision and when no legally authorized guardian or committee is available to provide consent shall be governed by regulations adopted by the State Board of Behavioral Health and Developmental Services under § 37.2-400.
Code 1950, § 32-137.01; 1979, c. 212, § 54-325.2:1; 1988, c. 765; 1989, c. 591; 1997, c. 801; 2002, c. 80; 2009, cc. 813, 840; 2012, cc. 476, 507.