HJR 614

Select Committee to Study the Statewide System of Providing Substitute Consent for People with Mental Disabilities

October 23, 2001, Richmond


House Joint Resolution 614 was introduced at the request of the Virginia Association of Community Services Boards (VACSB). A representative of the VACSB explained that after the General Assembly enacted legislation in 1999 to strengthen the human rights' protections for consumers of mental health and mental retardation services, a small population of consumers with mental illness or mental retardation who are unable to make decisions for themselves and who have no guardian, authorized representative or available family member, were left with no one to make decisions for them. Very often, these consumers need medical and dental care that may not be of an emergency nature, but significantly affects their health and safety.

Prior to 1999, an employee of a community services board could serve as a legally authorized representative and consent to treatment. Although it is possible to obtain limited guardianship through a circuit court hearing, the time that it takes to get a hearing, especially in rural areas, can be detrimental to the consumer's health and well-being. The VACSB stated that a method is needed to authorize urgent and emergent medical and dental services in a timely manner so that the needs of consumers are met with regard and respect for their human rights.

Proposed Solution

The ideal solution is to expand the existing Public Guardian and Conservator Program (VPGCP). The VPGCP, administered by the Department for the Aging, monitors the nine programs in the Commonwealth. Since general funds are used, full funding is not likely to occur in the immediate future and the VACSB stated that there is a need for an interim solution. One possibility is to have the local human rights committees (LHRC), which every CSB has, and which already regularly approve treatment and medication plans for consumers, authorize specific urgent and emergent medical or dental treatment.


There was considerable discussion of the proposed solution. Questions raised included the following:

  • Would the rights of consumers be adequately protected?
  • Should such an authorization have judicial approval?
  • Would such authorization be acceptable to providers?
  • Should such an authorization be appealable? Who would appeal and to what entity should it be appealed?
  • Do the work loads of LHRCs allow for this additional responsibility?
  • Is this an appropriate responsibility for LHRCs to have?
  • Is there a way to have a limited guardianship done more expeditiously by the courts so that the LHRCs would not have to take on this responsibility?
  • What types of medical and dental treatment should be included?
  • If the proposed solution is adopted, should it be time-limited?

The committee asked that information be collected on the number of people in facilities without a legally authorized representative; the number of mentally disabled persons served by CSBs who are unable to give consent and are without a guardian or legally authorized representative; and the number of times that CSBs have faced situations where consumers have needed urgent or emergent medical or dental treatment and there was no one to authorize treatment and descriptions of those situations.

A representative of the Virginia Guardianship Association advocated for the expansion of the Public Guardian and Conservator Program (VPGCP), stating that the most direct and expedient method to address the need for more substitute decision-makers for this portion of the population would be to expand the VPGCP throughout the state, with special emphasis on regions where public mental hospitals and residential facilities are located. The cost of providing public guardianship services is approximately $2,500 per person, annually; much less than the cost of the delay in discharge from a public facility for even one month due to the lack of a substitute decision-maker. Further, the protection provided to the individual by appointment of an accountable public entity governed by statute and regulations far exceeds other stopgap measures. An evaluation of the program is being conducted by the Center for Gerontology at Virginia Tech and will be completed in December.

The Department for the Aging's administrator of the VPGCP stated that Virginia's nine programs were selected from 17 good proposals. The programs are administered by a variety of agencies and are rigorously monitored by the department. Many of the nine entities subsidize the program. The VPGCP serves 212 persons, and it is estimated that statewide there are 2,288 additional persons who are in need of public guardianship services.

The committee will schedule a meeting in November.

The Honorable Jay DeBoer, Chairman
Legislative Services contact: Jescey French
Amy Marschean


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