2006 Code of Virginia § 54.1-2986 - Procedure in absence of an advance directive; procedure for advance directive without agent; no pre...

54.1-2986. Procedure in absence of an advance directive; procedure foradvance directive without agent; no presumption; persons who may authorizetreatment for patients incapable of informed decisions; applicabilityrestricted to nonprotesting patients.

A. Whenever (i) the attending physician of an adult patient has determinedafter personal examination that such patient, because of mental illness,mental retardation, or any other mental disorder, or a physical disorderwhich precludes communication or impairs judgment, is incapable of making aninformed decision about providing, withholding or withdrawing a specificmedical treatment or course of treatment and such adult patient has not madean advance directive in accordance with this article or (ii) the attendingphysician of an adult patient has determined after personal examination thatsuch patient, because of mental illness, mental retardation, or any othermental disorder, or a physical disorder which precludes communication orimpairs judgment, is incapable of making an informed decision aboutproviding, withholding or withdrawing a specific medical treatment or courseof treatment and the adult patient has made an advance directive inaccordance with this article which does not indicate his wishes with respectto the specific course of treatment at issue and does not appoint an agent tomake health care decisions upon his becoming incapable of making an informeddecision, the attending physician may, upon compliance with the provisions ofthis section, provide to, withhold or withdraw from such patient medical orsurgical care or treatment, including, but not limited to, life-prolongingprocedures, upon the authorization of any of the following persons, in thespecified order of priority, if the physician is not aware of any available,willing and competent person in a higher class:

1. A guardian or committee for the patient. This subdivision shall not beconstrued to require such appointment in order that a treatment decision canbe made under this section; or

2. The patient's spouse except where a divorce action has been filed and thedivorce is not final; or

3. An adult child of the patient; or

4. A parent of the patient; or

5. An adult brother or sister of the patient; or

6. Any other relative of the patient in the descending order of bloodrelationship.

If two or more of the persons listed in the same class in subdivisions A 3through A 6 with equal decision-making priority inform the attendingphysician that they disagree as to a particular treatment decision, theattending physician may rely on the authorization of a majority of thereasonably available members of that class.

Any person authorized to consent to the providing, withholding or withdrawingof treatment pursuant to this article shall (i) prior to giving consent, makea good faith effort to ascertain the risks and benefits of and alternativesto the treatment and the religious beliefs and basic values of the patientreceiving treatment, and to inform the patient, to the extent possible, ofthe proposed treatment and the fact that someone else is authorized to make adecision regarding that treatment and (ii) base his decision on the patient'sreligious beliefs and basic values and any preferences previously expressedby the patient regarding such treatment to the extent they are known, and ifunknown or unclear, on the patient's best interests. Regardless of theabsence of an advance directive, if the patient has expressed his intent tobe an organ donor in any written document, no person noted in this sectionshall revoke, or in any way hinder, such organ donation.

B. The absence of an advance directive by an adult patient shall not giverise to any presumption as to his intent to consent to or refuselife-prolonging procedures.

C. The provisions of this article shall not apply to authorization ofnontherapeutic sterilization, abortion, psychosurgery, or admission to afacility, as defined in 37.2-100; however, the provisions of this article,if otherwise applicable, may be employed to authorize a specific treatment orcourse of treatment for a person who has been lawfully admitted to such afacility.

Further, the provisions of this article shall not authorize providing,continuing, withholding or withdrawing of treatment if the provider of thetreatment knows that such an action is protested by the patient. No personshall authorize treatment, or a course of treatment, pursuant to thisarticle, that such person knows, or upon reasonable inquiry ought to know, iscontrary to the religious beliefs or basic values of the patient unable tomake a decision, whether expressed orally or in writing.

D. Prior to withholding or withdrawing treatment for which authorization hasbeen obtained or will be sought pursuant to this article and prior to, or assoon as reasonably practicable thereafter, the initiation of treatment forwhich authorization has been obtained or will be sought pursuant to thisarticle, and no less frequently than every 180 days while the treatmentcontinues, the attending physician shall obtain written certification thatthe patient is incapable of making an informed decision regarding thetreatment from a licensed physician or clinical psychologist which shall bebased on a personal examination of the patient. Whenever the authorization isbeing sought for treatment of a mental illness, the second physician orlicensed clinical psychologist shall not be otherwise currently involved inthe treatment of the person assessed. The cost of the assessment shall beconsidered for all purposes a cost of the patient's treatment.

E. On petition of any person to the circuit court of the county or city inwhich any patient resides or is located for whom treatment will be or iscurrently being provided, withheld or withdrawn pursuant to this article, thecourt may enjoin such action upon finding by a preponderance of the evidencethat the action is not lawfully authorized by this article or by other stateor federal law.

(1983, c. 532, 54-325.8:6; 1988, c. 765; 1992, cc. 748, 772; 1999, c. 814;2000, c. 810; 2005, c. 716.)