Virginia Administrative Code
Title 12 - HEALTH
Agency 35 - DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES
Chapter 115 - REGULATIONS TO ASSURE THE RIGHTS OF INDIVIDUALS RECEIVING SERVICES FROM PROVIDERS LICENSED, FUNDED, OR OPERATED BY THE DEPARTMENT OF BEHAVIORAL
Part III - Explanation of Individual Rights and Provider Duties
Section 12VAC35-115-70 - Participation in decision making and consent
Universal Citation: 2 VA Admin Code 35-115-70
Current through Register Vol. 41, No. 3, September 23, 2024
A. Each individual has a right to participate meaningfully in decisions regarding all aspects of services affecting him. This includes the right to:
1. Consent or not
consent to receive or participate in services.
a. The ISP and discharge plan shall
incorporate the individual's preferences consistent with his condition and need
for service and the provider's ability to address them;
b. The individual's services record shall
include evidence that the individual has participated in the development of his
ISP and discharge plan, in changes to these plans, and in all other significant
aspects of his treatment and services; and
c. The individual's services record shall
include the signature or other indication of the individual's or his authorized
representative's consent.
2. Give or not give informed consent to
receive or participate in treatment or services that pose a risk of harm
greater than ordinarily encountered in daily life and to participate in human
research except research that is exempt under § 32.1-162.17 of the Code of
Virginia. Informed consent is always required for surgical procedures,
electroconvulsive treatment, or use of psychotropic medications.
a. To be informed, consent for any treatment
or service must be based on disclosure of and understanding by the individual
or his authorized representative of the following information:
(1) An explanation of the treatment, service,
or research and its purpose;
(2)
When proposing human research, the provider shall describe the research and its
purpose, explain how the results of the research will be disseminated and how
the identity of the individual will be protected, and explain any compensation
or medical care that is available if an injury occurs;
(3) A description of any adverse consequences
and risks associated with the research, treatment, or service;
(4) A description of any benefits that may be
expected from the research, treatment, or service;
(5) A description of any alternative
procedures that might be considered, along with their side effects, risks, and
benefits;
(6) Notification that the
individual is free to refuse or withdraw his consent and to discontinue
participation in any treatment, service, or research requiring his consent at
any time without fear or reprisal against or prejudice to him; and
(7) A description of the ways in which the
individual or his authorized representative can raise concerns and ask
questions about the research, treatment, or service to which consent is
given.
b. Evidence of
informed consent shall be documented in an individual's services record and
indicated by the signature of the individual or his authorized representative
on a form or the ISP.
c. Informed
consent for electroconvulsive treatment requires the following additional
components:
(1) Informed consent shall be in
writing, documented on a form that shall become part of the individual's
services record. This form shall:
(a) Specify
the maximum number of treatments to be administered during the
series;
(b) Indicate that the
individual has been given the opportunity to view an instructional video
presentation about the treatment procedures and their potential side effects;
and
(c) Be witnessed in writing by
a person not involved in the individual's treatment who attests that the
individual has been counseled and informed about the treatment procedures and
potential side effects of the procedures.
(2) Separate consent, documented on a new
consent form, shall be obtained for any treatments exceeding the maximum number
of treatments indicated on the initial consent form.
(3) Providers shall inform the individual or
his authorized representative that the individual may obtain a second opinion
before receiving electroconvulsive treatment and the individual is free to
refuse or withdraw his consent and to discontinue participation at any time
without fear of reprisal against or prejudice to him. The provider shall
document such notification in the individual's services record.
(4) Before initiating electroconvulsive
treatment for any individual under age 18 years, two qualified child
psychiatrists must concur with the treatment. The psychiatrists must be trained
or experienced in treating children or adolescents and not directly involved in
treating the individual. Both must examine the individual, consult with the
prescribing psychiatrist, and document their concurrence with the treatment in
the individual's services record.
3. Have an authorized representative make
decisions for him in cases where the individual has been determined to lack the
capacity to consent or authorize the disclosure of information.
a. If an individual who has an authorized
representative who is not his legal guardian objects to the disclosure of
specific information or a specific proposed treatment or service, the director
or his designee shall immediately notify the human rights advocate and
authorized representative. A petition for LHRC review of the objection may be
filed under
12VAC35-115-200.
b. If the authorized representative objects
or refuses to consent to a specific proposed treatment or service for which
consent is necessary, the provider shall not institute the proposed treatment,
except in an emergency in accordance with this section or as otherwise
permitted by law.
4. Be
accompanied, except during forensic evaluations, by a person or persons whom
the individual trusts to support and represent him when he participates in
services planning, assessments, evaluations, including discussions and
evaluations of the individual's capacity to consent, and discharge
planning.
5. Request admission to
or discharge from any service at any time.
B. The provider's duties.
1. Providers shall respect, protect, and help
develop each individual's ability to participate meaningfully in decisions
regarding all aspects of services affecting him. This shall be done by
involving the individual, to the extent permitted by his capacity, in decision
making regarding all aspects of services.
2. Providers shall ask the individual to
express his preferences about decisions regarding all aspects of services that
affect him and shall honor these preferences to the extent possible.
3. Providers shall give each individual the
opportunity and any help he needs to participate meaningfully in the
preparation of his services plan, discharge plan, and changes to these plans,
and all other aspects of services he receives. Providers shall document these
opportunities in the individual's services record.
4. Providers shall obtain and document in the
individual's services record the individual's or his authorized
representative's consent for any treatment before it begins. If the individual
is a minor in the legal custody of a natural or adoptive parent, the provider
shall obtain this consent from at least one parent. The consent of a parent is
not needed if a court has ordered or consented to treatment or services
pursuant to § 16.1-241C or D, 16.1-275, or 54.1-2969 A 1 or B of the Code
of Virginia, or a local department of social services with custody of the minor
has provided consent. Reasonable efforts must be made, however, to notify the
parent or legal custodian promptly following the treatment or services.
Additionally, a competent minor may independently consent to treatment for
sexually transmitted or contagious diseases, family planning or pregnancy, or
outpatient services or treatment for mental illness, emotional disturbance, or
substance use disorders pursuant to § 54.1-2969E of the Code of
Virginia.
5. Providers may
initiate, administer, or undertake a proposed treatment without the consent of
the individual or the individual's authorized representative in an emergency.
All emergency treatment or services and the facts and circumstances justifying
the emergency shall be documented in the individual's services record within 24
hours of the treatment or services.
a.
Providers shall immediately notify the authorized representative of the
provision of treatment without consent during an emergency.
b. Providers shall continue emergency
treatment without consent beyond 24 hours only following a review of the
individual's condition and if a new order is issued by a professional who is
authorized by law and the provider to order treatment.
c. Providers shall notify the human rights
advocate if emergency treatment without consent continues beyond 24
hours.
d. Providers shall develop
and integrate treatment strategies into the ISP to address and prevent future
emergencies to the extent possible following provision of emergency treatment
without consent.
6.
Providers shall obtain and document in the individual's services record the
consent of the individual or his authorized representative to continue any
treatment initiated in an emergency that lasts longer than 24 hours after the
emergency began.
7. Providers may
provide treatment in accordance with a court order or in accordance with other
provisions of law that authorize such treatment or services including §
54.1-2970 of the Code of Virginia and the Health Care Decisions Act (§
54.1-2981 et seq. of the Code of Virginia). The provisions of these regulations
are not intended to be exclusive of other provisions of law but are cumulative
.
8. Providers shall respond to an
individual's request for discharge set forth in statute and shall make sure
that the individual is not subject to punishment, reprisal, or reduction in
services because he makes a request. However, if an individual leaves a service
against medical advice, any subsequent billing of the individual by his private
third party payer shall not constitute punishment or reprisal on the part of
the provider.
a. Voluntary admissions.
(1) Individuals admitted under §
37.2-805 of the Code of Virginia to state hospitals operated by the department
who notify the director of their intent to leave shall be discharged when
appropriate, but no later than eight hours after notification, unless another
provision of law authorizes the director to retain the individual for a longer
period.
(2) Minors admitted under
§ 16.1-338 or 16.1-339 of the Code of Virginia shall be released to the
parent's or legal guardian's custody within 48 hours of the consenting parent's
or legal guardian's notification of withdrawal of consent, unless a petition
for continued hospitalization pursuant to § 16.1-340.1 or 16.1-341 of the
Code of Virginia is filed.
b. Involuntary admissions.
(1) When a minor involuntarily admitted under
§ 16.1-345 of the Code of Virginia no longer meets the commitment
criteria, the director shall take appropriate steps to arrange the minor's
discharge.
(2) When an individual
involuntarily admitted under § 37.2-817 of the Code of Virginia has been
receiving services for more than 30 days and makes a written request for
discharge, the director shall determine whether the individual continues to
meet the criteria for involuntary admission. If the director denies the request
for discharge, he shall notify the individual in writing of the reasons for
denial and of the individual's right to seek relief in the courts. The request
and the reasons for denial shall be included in the individual's services
record. Anytime the individual meets any of the criteria for discharge set out
in § 37.2-837 or 37.2-838 of the Code of Virginia, the director shall take
all necessary steps to arrange the individual's discharge.
(3) If at any time it is determined that an
individual involuntarily admitted under Chapter 11 (§ 19.2-167 et seq.) or
Chapter 11.1 (§ 19.2-182.2 et seq.) of Title 19.2 of the Code of Virginia
no longer meets the criteria under which the individual was admitted and
retained, the director or commissioner, as appropriate, shall seek judicial
authorization to discharge or transfer the individual. Further, pursuant to
§ 19.2-182.6 of the Code of Virginia, the commissioner shall petition the
committing court for conditional or unconditional release at any time he
believes the acquittee no longer needs hospitalization.
c. Certified admissions. If an individual
certified for admission to a state training center or his authorized
representative requests discharge, the director or his designee shall contact
the individual's community services board to finalize and implement the
discharge plan.
Statutory Authority: §§ 37.2-203 and 37.2-400 of the Code of Virginia.
Disclaimer: These regulations may not be the most recent version. Virginia may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
