Selected Health, Civil Commitment, Mental Health Duty To Warn, Advance Medical Directive, Powers of Attorney and Conservatorship & Guardianship Sections in the Code of Virginia

A.  Health Related Sections of the Virginia Code:

• 32.1-127.1:03 - Patient health records privacy
• 32.1-127.1:01 - Record storage
• 32.1-127.3 - Immunity from liability for certain free health care services
• 32.1-36.1 - Confidentiality of test for human immunodeficiency virus; civil penalty; individual action for damages or penalty
• 32.1-37.2 - Informed consent for testing for human immunodeficiency virus; condition on disclosure of test results; counseling required; exceptions
• 32.1-38 - Immunity from liability for certain disclosures

B.  Civil Commitment and Mental Health Providers' Duty to Protect:

Duty to Protect Third Parties

• 54.1-2400.1 - Mental health service providers; duty to protect third parties; immunity

 

 

A mental health service provider has a duty to take precautions to protect third parties from violent behavior or other serious harm only when the client has orally, in writing, or via sign language, communicated to the provider a specific and immediate threat to cause serious bodily injury or death to an identified or readily identifiable person or persons, if the provider reasonably believes, or should believe according to the standards of his profession, that the client has the intent and ability to carry out that threat immediately or imminently. If the third party is a child, in addition to taking precautions to protect the child from the behaviors in the above types of threats, the provider also has a duty to take precautions to protect the child if the client threatens to engage in behaviors that would constitute physical abuse or sexual abuse as defined in § 18.2-67.10. The duty to protect does not attach unless the threat has been communicated to the provider by the threatening client while the provider is engaged in his professional duties.

The "specific threat" need not be a direct statement to the health care provider; Head v. INOVA Health Care Serv., 19 Cir. 189605 (2001) holds that the communication of a threat which can create liability of a mental health service provider to a third party is not limited to direct communication between a patient and a provider; "the communication could also include a threat made by the patient, recorded in his chart and reviewed by a mental health service provider."

Note that this statute does not apply to self harm.  A health care provider may be found liable for negligence based upon self harm when the health care provider's conduct does not conform with the applicable standard of care. See Molchon v. Tyler, 262 Va.175, 546 S.E.2d 691 (2001)(suicide); Wackwitz v. Roy, 244 Va. 60, 418 S.E.2d 861 (1992) (suicide).

Civil Commitment

• 37.1-63 - Applicability of chapter
• 37.1-64 - Admission procedures; forms
• 37.1-65 - Voluntary admission
• 37.1-65.1 - Judicial certification of eligibility for admission of mentally retarded persons
• 37.1-65.2 - Emergency or respite care admissions to mental retardation facilities
• 37.1-65.3 - Judicial certification of eligibility for admission to state hospitals of persons in coma
• 37.1-67.01 - Emergency custody; issuance and execution of order
• 37.1-67.1 - Involuntary temporary detention; issuance and execution of order
• 37.1-67.3 - Same; involuntary admission and treatment
• 37.1-67.4 - Same; where hearings may be held; services during temporary detention; costs


The hearing provided for pursuant to § 37.1-67.3 may be conducted by the judge at the convenient institution or other place provided for in § 37.1-67.1, if he deems it advisable, even though such institution or place is located in a county or city other than his own. In conducting such hearings in a county or city other than his own, the judge shall have all of the authority and power which he would have in his own county or city. A judge, substitute judge or special justice of the county or city in which such institution or place is located may conduct the hearing provided for in § 37.1-67.3.
 

• 37.1-67.5 - Same; interpreters for deaf persons in commitment or certification proceedings
• 37.1-67.6 - Appeal of commitment or certification order
• 37.1-68 - Examination of admission papers by director
• 37.1-71 - Transportation of person certified for admission


[Ed. note: The six hour rule; the sheriff of the patient's residence transports unless the office of the sheriff is more than 100 road miles from the nearest boundary of the commitment hearing; duty of commissioner to notify sheriffs of alternate hospitals when state facilities are full.]
 

" If the judge determines that the person requires transportation by the sheriff, such person may be delivered to the care of the sheriff, as specified in this section, who shall transport such person to the proper hospital.  In no event shall transport commence later than six hours after notification to the sheriff of such certification.  The sheriff of the jurisdiction where the person is a resident shall be responsible for transporting the person unless the sheriff's office of such jurisdiction is located more than 100 road miles from the nearest boundary of the jurisdiction in which the proceedings took place. In cases where the sheriff of the jurisdiction of which the person is a resident is more than 100 road miles from the nearest boundary of the jurisdiction in which the proceedings took place, it shall be the responsibility of the sheriff of the latter jurisdiction to transport the person. The cost of transportation of any person so applying or certified for admission pursuant to § 37.1-67.3 or § 37.1-67.4 shall be paid by the Commonwealth from the same funds as for care in jail. If any state hospital has become too crowded to accommodate any such person certified for admission therein, the Commissioner shall give notice of the fact to all sheriffs and shall designate the hospital to which they shall transport such persons.
 

• 37.1-72 - Custody of certified person for purpose of transportation
• 37.1-73 - Detention in jail after certification
• 37.1-74 - Mentally ill persons not to be confined in cells with criminals
• 37.1-75 - Escape, sickness, death or discharge of certified person while in custody; warrant for person escaping
• 37.1-76 - Arrest of certain persons involuntarily confined
• 37.1-77 - Arrest without warrant
• 37.1-78 - Attendants to conduct persons admitted voluntarily to hospitals
• 37.1-78.1 - Transfer of patients
• 37.1-84.1 - Rights of patients and residents
• 37.1-84.1:1 - Collection and dissemination of information concerning religious preferences and affiliations
• 37.1-84.2 - Periodic review of all patients for purposes of retention
• 37.1-84.3 - Appointments to state and local human rights committees
• 37.1-85 - Treatment of person admitted while appeal is pending
• 37.1-87 - Admission raises no presumption of legal incapacity
• 37.1-88 - Special justices to perform duties of judge under this title
• 37.1-89 - Fees and expenses
• 37.1-90 - Place of hearing


Any hearing held by a judge pursuant to the provisions of this article may be held in any courtroom available within the county or city wherein the hospital is located or, unless objection thereto is made by the attorney for the person alleged to be mentally ill, in any appropriate place, open to the public, which may be made available by the Commissioner and approved by the judge. Nothing herein shall be construed as prohibiting the place of hearing being on the grounds of the hospital.

C.  Powers of Attorney and Guardianship and Conservatorship Sections of the Virginia Code:

Powers of Attorney.

• 11-9.1 When power of attorney, etc., not terminated by principal's disability; exception.
• 11-9.2  Powers of attorney not revoked, prior to their termination date, until actual notice of death or disability.
• 11-9.3 Powers of attorney executed by members of armed services listed as missing in action.
• 11-9.4 Contingent powers of attorney.
• 11-9.5 Gifts under power of attorney.
• Certain duties of attorneys-in-fact and agents empowered to act under § 11-9.1

Guaridanship.

• 37.1-134.6 - Definitions
• 37.1-134.7 - Filing of petition; jurisdiction; fees
• 37.1-134.8 - Who may file petition; contents
• 37.1-134.9 - Appointment of guardian ad litem
• 37.1-134.10 - Notice of hearing; jurisdictional
• 37.1-134.11 - Evaluation report (see web page for link to form)
• 37.1-134.12 - Counsel for respondent
• 37.1-134.13 - Hearing on petition to appoint
• 37.1-134.13:1 - Fees and costs (call clerk of court for local fees and costs)
• 37.1-134.14 - Court order of appointment; limited guardianships and conservatorships
• 37.1-134.14:1 - Eligibility for public guardian or conservator
• 37.1-134.15 - Qualification of guardian or conservator; clerk to record order and issue certificate; reliance on certificate
• 37.1-134.16 - Petition for restoration, modification or termination; effects
• 37.1-134.17 - Standby guardianship or conservatorship for incapacitated persons
• 37.1-134.18- Clerk to index findings of incapacity or restoration; notice to Commissioner, commissioner of accounts, Secretary of Board of Elections and CCRE
• 37.1-134.19 - When no guardian or conservator appointed within one month of adjudication
• 37.1-134.20 - Trustees for incapacitated ex-service persons and their beneficiaries
• 37.1-134.21 - (Effective until January 1, 2001) Judicial authorization of provision, withholding or withdrawal of treatment and detention of certain persons
• 37.1-134.21 - (Effective January 1, 2001) Judicial authorization of treatment and detention of certain persons
• 37.1-134.22 - Discovery of information and records regarding actions of certain agents and attorneys-in-fact.
• 37.1-136 - Taking of bond by clerk of court
• 37.1-137 - Effect of refusal to give bond or accept trust
• 37.1-137.1 - Duties and powers of guardian
• 37.1-137.2 - Annual reports by guardians
• 37.1-137.3 - General duties and liabilities of conservator
• 37.1-137.4 - Management powers and duties of conservator
• 37.1-137.5 - Estate planning  (See outline regarding creation of trusts and authorization for gifting in web page)
• 37.1-139 - Taking possession of ward's estate and suits relative thereto; retaining for his own debt
• 37.1-141 - Fiduciary to prosecute and defend
• 37.1-143 - Payments from Veterans' Administration
• 37.1-144 - Surrender of ward's estate ( including, "[i]f upon the death of the ward (i) the value of the personal estate in the custody of the fiduciary is $5,000 or less, (ii) a personal representative has not qualified within sixty days of the ward's death and (iii) the fiduciary does not anticipate that anyone will qualify, the fiduciary may pay the balance of the ward's estate to the ward's surviving spouse, or if there is no surviving spouse, to the distributees of the ward or other persons entitled thereto, including any person or entity entitled to payment for funeral or burial services provided. The distribution shall be noted in the guardian's final accounting submitted to the Commissioner of Accounts.")

D.  Virginia Health Care Decisions Act:

What happens when there is no "living will," or "health care power of attorney," or other form of advance directive in Virginia?  If you think it's between your spouse (or other loved one) and doctor, think again: see the unhappy results in the modern day tragedy of Michele Finn's fight with the Virginia Governor in the Virginia Supreme Court opinion rendered March 2, 2000, in James S. Gilmore, III, Governor of the Commonwealth of Virginia, et. al. v. Michele P. Finn, Record No. 990779, and Michele P. Finn v. James S. Gilmore, III, et al., Record No. 990796. (Requires Adobe Acrobat Reader.)

Like to avoid this kind of horror in your own family?  See your lawyer or download and complete the simple form found in Virginia Code Section 54.1-2984.  Do it today!
 

• 54.1-2981 - Short title
• 54.1-2982 - Definitions
• 54.1-2983 - Procedure for making advance directive; notice to physician
• 54.1-2984 - Suggested form of written advance directives ("Living Will" Form)
• 54.1-2985 - Revocation of an advance directive
• 54.1-2986 - Procedure in absence of an advance directive; procedure for advance directive without agent; no presumption; persons who may authorize treatment for patients incapable of informed decisions; applicability restricted to nonprotesting patients
• 54.1-2987 - Transfer of patient by physician who refuses to comply with advance directive or treatment decision
• 54.1-2987.1 - Durable Do Not Resuscitate Orders
• 54.1-2988 - Immunity from liability; burden of proof; presumption
• 54.1-2989 - Willful destruction, concealment, etc., of declaration or revocation; penalties
• 54.1-2990 - Medically unnecessary treatment not required; mercy killing or euthanasia prohibited
• 54.1-2991 - Effect of declaration; suicide; insurance; declarations executed prior to effective date
• 54.1-2992 - Preservation of existing rights

54.1-2993 - Reciprocity