State law: Health Care Decisions Act(Va. Code §§ 54.1-2981 et seq.)

Specific sections of Virginia law are reviewed in other subsections of the ADs and Health Care Providers section.  Some general points to note here:

  • Virginia’s HCDA is a comprehensive and detailed set of laws regarding health care decision making;
  • The HCDA was updated in 2009/2010 to reflect incorporation of mental health care;
  • Separate health care power of attorney and living will statutes no longer exist in Virginia—the HCDA incorporates the legal rights to appoint a proxy and to write instructions

Laws and Standards

National standards: The Joint Commission (formerly the Joint Commission on Accreditation of Healthcare Organizations)

Standard RI.01.05.01 is the relevant Joint Commission standard.  The standards make clear that simply providing information on ADs is insufficient—the subject must be discussed so that patients understand their options for decision making.  Additional points to note:

  • EP 4 requires written policies for use of ADs in outpatient settings;
  • EP 5 requires that facilities actually implement their AD policies;
  • EP 8 requires hospitals to provide information on admission if it is unable or unwilling to comply with an AD;
  • EP 10 requires that facilities refer patients for assistance with drafting an AD upon request

The underlined requirements highlight the areas where many health care provider agencies fall short.

The use of ADs is directed by several laws and standards at the national and state levels.

Federal law: Patient Self-Determination Act (42 CFR § 489.102)

This act, enacted in 1991, is the law that may be most recognized by providers.  The law was originally aimed at certain providers, but at least one aspect of the law—asking whether someone has an AD—has become widespread practice throughout the health care system.

Still, several requirements of the law are frequently overlooked.  Providers must:

  • Maintain written policies and procedures;​
  • Document whether a patient has an AD;
  • Comply with all State laws regarding ADs;
  • Not condition health care on whether a patient has an AD;
  • Inform patients how complaints regarding ADs may be filed; and
  • Provide staff and community education on ADs.