SEARCH SITE
VIRGINIA LAW PORTAL
- Code of Virginia
- Virginia Administrative Code
- Constitution of Virginia
- Charters
- Authorities
- Compacts
- Uncodified Acts
- RIS Users (account required)
SEARCHABLE DATABASES
- Bills & Resolutions
session legislation - Bill Summaries
session summaries - Reports to the General Assembly
House and Senate documents - Legislative Liaisons
State agency contacts
ACROSS SESSIONS
- Subject Index: Since 1995
- Bills & Resolutions: Since 1994
- Summaries: Since 1994
Developed and maintained by the Division of Legislative Automated Systems.
2002 SESSION
021548500Be it enacted by the General Assembly of Virginia:
1. That §§ 32.1-162.16 and 32.162.18 of the Code of Virginia are amended and reenacted as follows:
§ 32.1-162.16. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Human research" means any systematic investigation utilizing human subjects
which that may expose such human subjects to physical or psychological
injury as a consequence of participation as subjects and which that departs
from the application of established and accepted therapeutic methods appropriate to meet the
subjects' needs.
"Informed consent" means the knowing and voluntary agreement, without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion, of a person who is capable of exercising free power of choice. For the purposes of human research, the basic elements of information necessary to such consent shall include:
1. A reasonable and comprehensible explanation to the person of the proposed procedures or protocols to be followed, their purposes, including descriptions of any attendant discomforts, and risks and benefits reasonably to be expected;
2. A disclosure of any appropriate alternative procedures or therapies that might be advantageous for the person;
3. An instruction that the person may withdraw his consent and discontinue participation in the human research at any time without prejudice to him;
4. An explanation of any costs or compensation which may accrue to the person and, if applicable, the availability of third party reimbursement for the proposed procedures or protocols; and
5. An offer to answer and answers to any inquiries by the person concerning the procedures and protocols.
"Institution" or "agency" means any facility, program, or organization owned or operated by the Commonwealth, by any political subdivision, or by any person, firm, corporation, association, or other legal entity.
"Legally authorized representative" means, in the following specified order of
priority, (i) the parent or parents having custody of a prospective subject who
is a minor, ii) the agent appointed under an advance directive, as defined in §
54.1-2982, executed by the prospective subject, provided the advance directive
authorizes the agent to make decisions regarding the prospective subject's participation in human
research, (ii iii) the legal guardian of a prospective subject, (iv) the spouse
of the prospective subject, except where a suit for divorce has been filed and
the divorce decree is not yet final, (v) an adult child of the prospective
subject, (vi) a non-custodial parent of the prospective
subject who is an adult, (vii) an adult brother or sister of the prospective
subject or (iii) (viii) any person or judicial or other body authorized by law
or regulation to consent on behalf of a prospective subject to such subject's participation in the particular human research.
For the purposes of this chapter, any person authorized by law or regulation to
consent on behalf of a prospective subject to such subject's participation in
the particular human research shall include an attorney in fact appointed under
a durable power of attorney, to the extent the power grants the authority to
make such a decision. The attorney in fact shall not be employed by the
person, institution, or agency conducting the human research. If two or more of
the persons listed in clauses (i) through (viii), with equal decision-making
priority, inform the principal investigator or attending physician that they
disagree as to participation of the prospective subject in human research, the
principle investigator or attending physician may rely on the authorization of
a majority of the reasonably available members of that class. No official or
employee of the institution or agency conducting or authorizing the research shall be
qualified to act as a legally authorized representative.
"Minimal risk" means that the risks of harm anticipated in the proposed research are not greater, considering probability and magnitude, than those ordinarily encountered in daily life or during the performance of routine physical or psychological examinations or tests.
"Nontherapeutic research" means human research in which there is no reasonable expectation of direct benefit to the physical or mental condition of the human subject.
§ 32.1-162.18. Informed consent.
A. In order to conduct human research in this Commonwealth, informed consent
must be obtained if the person who is to be the human subject is as follows:
(i) competent capable of making an informed decision, then it shall be
subscribed to in writing by the person and witnessed; (ii) not competent
incapable of making an informed decision, as defined in § 54.1-2982, at the
time consent is required, then it shall be subscribed to in writing by the
person's legally authorized representative and witnessed; or (iii) a minor
otherwise capable of rendering informed consent, then it shall be subscribed to
in writing by both the minor and his legally authorized representative. The
giving of consent by a legally authorized representative shall be subject to
the provisions of subsection B of this section. No informed consent form shall
include any language through which the person who is to be the human subject
waives or appears to waive any of his legal rights, including any release of
any individual, institution, or agency or any agents thereof from liability for
negligence.
Notwithstanding consent by a legally authorized representative, no person who is otherwise capable of rendering informed consent shall be forced to participate in any human research. In the case of persons suffering from organic brain diseases causing progressive deterioration of cognition for which there is no known cure or medically accepted treatment, the implementation of experimental courses of therapeutic treatment to which a legally authorized representative has given informed consent shall not constitute the use of force.
B. A legally authorized representative may not consent to nontherapeutic research unless it is determined by the human research committee that such nontherapeutic research will present no more than a minor increase over minimal risk to the human subject.
C. The human research review committee may approve a consent procedure which omits or alters some or all of the basic elements of informed consent, or waives the requirement to obtain informed consent, if the committee finds and documents that (i) the research involves no more than minimal risk to the subjects; (ii) the omission, alteration or waiver will not adversely affect the rights and welfare of the subjects; (iii) the research could not practicably be performed without the omission, alteration or waiver; and (iv) after participation, the subjects are to be provided with additional pertinent information, whenever appropriate.
D. The human research review committee may waive the requirement that the investigator obtain written informed consent for some or all subjects, if the committee finds that the only record linking the subject and the research would be the consent document and the principal risk would be potential harm resulting from a breach of confidentiality. The committee may require the investigator to provide the subjects with a written statement explaining the research. Further, each subject shall be asked whether he wants documentation linking him to the research and the subject's wishes shall govern.