2006 Delaware Code - Subchapter III — Consent for Elective Surgery

§ 5530. Definitions.

(a) "Alternative decision maker" is a person identified to make decisions for an individual in that individual's best interest. In the absence of an assigned legal guardian of person or applicable advanced health care directive, power of attorney, or similar legal instrument, any member of the following classes of the patient's family who is reasonably available, in the descending order of priority, may act as alternative decision maker and shall be recognized as such by the supervising health care provider:

(1) The spouse, unless a petition for divorce has been filed, or unless the patient has filed a petition or complaint alleging abuse, as defined in § 1041(1) of Title 10, of the patient by the spouse;

(2) An adult child;

(3) A parent;

(4) An adult brother or sister;

(5) An adult grandchild; or

(6) Nieces and nephews.

(b) "Elective surgery" is a surgical or dental procedure, not including sterilization, not necessary to prevent or correct an immediate life-threatening condition.

(c) "Informed consent" is the consent of a patient to the performance of health care services by a health care provider who has informed the patient both verbally and in writing, to an extent reasonably comprehensible to general lay understanding, of the nature of the proposed procedure or treatment and of the risks and alternatives to treatment which a reasonable patient would consider material to the decision whether or not to undergo the treatment. The patient must understand the information provided by the health care provider.

(d) "Persons diagnosed with mental retardation or other specific developmental disabilities" shall include, for the purposes of this subchapter, those persons who are receiving services from the Division of Developmental Disabilities Services. (64 Del. Laws, c. 305, § 1; 73 Del. Laws, c. 97, § 3; 75 Del. Laws, c. 69, §§ 1, 2.)

§ 5531. Persons without legal guardians.

(a) Consent to perform elective surgery upon a person who is receiving services from the Division of Developmental Disabilities Services may be given by the Division Director or his or her designee if all of the following circumstances apply:

(1) The person receiving residential services cannot give his or her own informed consent;

(2) The person receiving services has no alternative decision maker; and

(3) The person receiving residential services has no legal guardian of the person, or applicable advanced health care directive, power of attorney, or similar legal instrument.

(b) Before giving such consent the Division Director or his or her designee must:

(1) Be satisfied that the elective surgery is in the best interest of the person diagnosed with mental retardation or other specific developmental disabilities and is the least restrictive and intrusive treatment for the existing condition;

(2) Obtain the written recommendations for elective surgery of 2 physicians or 2 dentists, as the case may be, not employed by the Division of Developmental Disabilities Services; and

(3) Ensure that the person diagnosed with mental retardation or other specific developmental disabilities has been informed to the extent the person is able to understand about the medical treatment or procedure suggested. (64 Del. Laws, c. 305, § 1; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 97, § 4.)

§ 5532. Immunity from liability.

(a) No physician, dentist or other health care personnel or health care facility which acts pursuant to and in compliance with this subchapter shall be subject to civil liability for failure to obtain sufficient consent for the medical procedure performed.

(b) This section shall not insulate from civil liability a physician, dentist or other health care personnel or health care facility for negligence in the performance of medical procedures. (64 Del. Laws, c. 305, § 1.)