                                 CODE OF VIRGINIA

CAPACITY; REQUIRED DETERMINATIONS (§ 54.1-2983.2)

A. Every adult shall be presumed to be capable of making an informed decision
unless he is determined to be incapable of making an informed decision in
accordance with this article. A determination that a patient is incapable of
making an informed decision may apply to a particular health care decision, to a
specified set of health care decisions, or to all health care decisions. No
person shall be deemed incapable of making an informed decision based solely on
a particular clinical diagnosis.

B. Except as provided in subsection C, prior to providing, continuing,
withholding, or withdrawing health care pursuant to an authorization that has
been obtained or will be sought pursuant to this article and prior to, or as
soon as reasonably practicable after initiating health care for which
authorization has been obtained or will be sought pursuant to this article, and
no less frequently than every 180 days while the need for health care continues,
the attending physician shall certify in writing upon personal examination of
the patient that the patient is incapable of making an informed decision
regarding health care and shall obtain written certification from a capacity
reviewer that, based upon a personal examination of the patient, the patient is
incapable of making an informed decision. However, certification by a capacity
reviewer shall not be required if the patient is unconscious or experiencing a
profound impairment of consciousness due to trauma, stroke, or other acute
physiological condition. The capacity reviewer providing written certification
that a patient is incapable of making an informed decision, if required, shall
not be otherwise currently involved in the treatment of the person assessed,
unless an independent capacity reviewer is not reasonably available. The cost of
the assessment shall be considered for all purposes a cost of the
patient&#8217;s health care.

C. If a person has executed an advance directive granting an agent the authority
to consent to the person&#8217;s admission to a facility as defined in &#xA7;
37.2-100 for mental health treatment and if the advance directive so authorizes,
the person&#8217;s agent may exercise such authority after a determination that
the person is incapable of making an informed decision regarding such admission
has been made by (i) the attending physician, (ii) a psychiatrist or licensed
clinical psychologist, (iii) a licensed advanced practice registered nurse, (iv)
a licensed physician assistant, (v) a licensed clinical social worker, or (vi) a
designee of the local community services board as defined in &#xA7; 37.2-809.
Such determination shall be made in writing following an in-person examination
of the person and certified by the physician, psychiatrist, licensed clinical
psychologist, licensed advanced practice registered nurse, licensed physician
assistant, licensed clinical social worker, or designee of the local community
services board who performed the examination prior to admission or as soon as
reasonably practicable thereafter. Admission of a person to a facility as
defined in &#xA7; 37.2-100 for mental health treatment upon the authorization of
the person&#8217;s agent shall be subject to the requirements of &#xA7;
37.2-805.1. When a person has been admitted to a facility for mental health
treatment upon the authorization of an agent following such a determination,
such agent may authorize specific health care for the person, consistent with
the provisions of the person&#8217;s advance directive, only upon a
determination that the person is incapable of making an informed decision
regarding such health care in accordance with subsection B.

D. If, at any time, a patient is determined to be incapable of making an
informed decision, the patient shall be notified, as soon as practical and to
the extent he is capable of receiving such notice, that such determination has
been made before providing, continuing, withholding, or withdrawing health care
as authorized by this article. Such notice shall also be provided, as soon as
practical, to the patient&#8217;s agent or person authorized by &#xA7; 54.1-2986
to make health care decisions on his behalf.

E. A single physician may, at any time, upon personal evaluation, determine that
a patient who has previously been determined to be incapable of making an
informed decision is now capable of making an informed decision, provided such
determination is set forth in writing.

HISTORY: 2009, cc. 211, 268; 2010, c. 792; 2017, cc. 456, 474; 2020, cc. 40,
231; 2023, c. 183.