CHAPTER 305

FORMERLY

SENATE BILL NO. 435

AN ACT TO AMEND CHAPTER 55, TITLE 16 OF THE DELAWARE CODE RELATING TO ELECTIVE MEDICAL PROCEDURES FOR MENTALLY RETARDED PERSONS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 55, Title 16 of the Delaware Code by adding thereto a new subchapter, designated as Subchapter III, which new subchapter shall read as follows:

"SUBCHAPTER III. CONSENT FOR ELECTIVE SURGERY

Section §530. Definitions

'Mentally retarded person' is a person with significantly subaverage general intellectural functioning existing concurrently with deficits in adaptive behavior.

'Elective surgery' is a surgical or dental procedure, not including sterilization and pyschotherapy, not necessary to prevent or correct an immediate life-threatening condition.

Section §531. Informed Consent for Elective Surgery

Consent to perform elective surgery upon a mentally retarded person who is receiving residential services from the Division of Mental Retardation who has no legal guardian may be given by the Superintendent of Stockley Center as fully and to the same effect as if said Superintendent had been appointed guardian and had applied to and received the approval of an appropriate court therefore.

Before giving such consent the Superintendent must:

Be satisfied that the elective surgery is in the best interest of the mentally retarded person and is the least restrictive and intrusive treatment for the existing condition; and,

Obtain the written recommendations for elective surgery of two physicians or two dentists, as the case may be, not employed by the Division of Mental Retardation; and,

Ensure that the mentally retarded person has been informed to the extent the person is able to understand about the medical treatment or procedure suggested.

Section §532. Immunity from Liability

No physician, dentist or other healthy 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.

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."

Section 2. This act shall become effective on the date on which it is signed by the Governor.

Approved lune 30, 1984.