TITLE 16

Health and Safety

Mental Health

CHAPTER 55. PERSONS DIAGNOSED WITH INTELLECTUAL DISABILITIES AND OTHER SPECIFIC DEVELOPMENTAL DISABILITIES

Subchapter III. Consent for Elective Surgery


(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;

(2) An adult child;

(3) A parent;

(4) An adult brother or sister;

(5) An adult grandchild;

(6) An adult aunt or uncle;

(7) An adult niece or nephew; or

(8) A grandparent.

(b) "Elective surgery'' is a surgical medical or dental procedure, not including sterilization, for the purposes of nonlife-threatening treatment or diagnosis.

(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 receiving services from the Division of Developmental Disabilities Services (DDDS)'' shall mean, for the purposes of this subchapter, those persons served within the residential program of the Division.

(e) Individuals specified in this subsection are disqualified from acting as an alternate decision maker if the person receiving services from DDDS has filed a petition for a protection from abuse order against the individual or if the individual is the subject of a civil or criminal order prohibiting contact with the person receiving services from DDDS.

64 Del. Laws, c. 305, § 1; 73 Del. Laws, c. 97, § 3; 75 Del. Laws, c. 69, §§ 1, 2; 77 Del. Laws, c. 395, §§ 1-3, 9.;

(a) Consent to perform elective surgery upon a person who is receiving services from the Division of Developmental Disabilities Services (''DDDS") may be given by the Division Director or such Director's 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 such Director's designee must:

(1) Be satisfied that the elective surgery is in the best interest of the person receiving services from DDDS and is an appropriate and least intrusive treatment for the existing condition;

(2) Obtain the written recommendation for elective surgery from at least 1 physician or 1 dentist, as applicable, who are not directly employed by the DDDS; and

(3) Ensure that the person receiving services from DDDS 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; 77 Del. Laws, c. 395, §§ 4-8.;

(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.;