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2002 SESSION

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CHAPTER 80 An Act to amend and reenact § 54.1-2970 of the Code of Virginia, relating to medical treatment for persons incapable of giving informed consent. [S 483] Approved March 4, 2002

Be it enacted by the General Assembly of Virginia:

1. That § 54.1-2970 of the Code of Virginia is amended and reenacted as follows:

§ 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 or, medical or dental treatment to an individual who is a patient or resident of a hospital or facility operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services or to a consumer 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 mental retardation under the following conditions:

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 or, 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 mental retardation 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 mental, emotional or psychological condition.

Treatment pursuant to this section of an individual's mental, emotional or psychological condition when the resident 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 promulgated by the State Mental Health, Mental Retardation and Substance Abuse Services Board under § 37.1-84.1 of this Code.