Magazine article Developments in Mental Health Law

In the Virginia General Assembly - 1989: New Surrogate Decision Making Measures Adopted

Magazine article Developments in Mental Health Law

In the Virginia General Assembly - 1989: New Surrogate Decision Making Measures Adopted

Article excerpt

Two new surrogate health care decision making procedures were adopted by the 1989 Virginia General Assembly. Both laws were derived from a previous law, [section] 37.1-134.2. The old law allowed judges to authorize medically necessary non-psychiatric medical treatment for persons incapable of giving consent to the treatment, without appointment of a guardian. The new laws evolved from this in two different directions, although, like the old, they operate without the necessity of appointment of a guardian. For the sake of simplicity the two new laws may be referred to as the judicial approach (enacted by HB 1438, Chapter 591) and the nonjudicial approach (enacted by SB 639, Chapter 513).

Since the legislation assigned both of these laws the same code section, [section] 37.1-134.3, some change in this designation will occur by the time of their effective date, July 1, 1989.

The judicial approach

The judicial approach is the closer of the two to the old procedure provided under [section] 37.1-134.2. It allows anyone to seek authorization for treatment from a general district court judge, juvenile and domestic relations district court judge, special justice or circuit court judge. Now the treatment authorized may include psychiatric treatment, although certain restrictions apply to these authorizations.

Psychotropic medication may be authorized for a maximum of 180 days and electroconvulsive therapy for only 60 days. Neither of these treatments can be administered under the authority of this section over the patient's objection unless there is a concurrent order of inpatient or outpatient commitment under [section] [section] 37.1-67.1 et seq. While the new law cannot be used to authorize admission to a mental health or mental retardation facility, it can be applied concurrently with the commitment or certification statutes to authorize post-commitment treatments.

The new law also permits the court to authorize detention and transportation of a person whose decision making capacity is impaired, but only where these measures are related to non-psychiatric treatment.

The court-appointed attorney is charged for the first time with looking into his client's preferences regarding treatment and presenting those preferences to the court. The court cannot authorize treatment when the evidence shows it to be contrary to the religious beliefs or basic values of the person unless the treatment is necessary to prevent death or a serious irreversible condition.

The non judicial approach

The nonjudicial approach is reserved for nonprotesting persons in need of or receiving treatment by a licensed physician. …

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