TITLE 16

Health and Safety

Food and Drugs

CHAPTER 47. CONTROLLED SUBSTANCES ACT

Subchapter VIII. Drug Overdose Fatality Review Commission


For purposes of this subchapter, the following definitions shall apply:

(1) "Controlled substance'' means a drug, substance or immediate precursor in Schedules I through V of subchapter II of this chapter.

(2) "Fentanyl'' shall have the meaning ascribed to it by § 4716(c)(6) of this title or its successor provision.

(3) "Opiate'' means any controlled substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability and is a prescription drug.

(4) "Overdose death'' means a death caused, in whole or in part, by the consumption or use of heroin or the consumption or use of a opiate, or the consumption or use of fentanyl.

(5) "Prescription drug'' shall have the meaning ascribed to it by § 4701 of this title or its successor provision.

80 Del. Laws, c. 220, § 1.;

(a) The following persons, or their designees, shall be members of the Drug Overdose Fatality Review Commission ("the Commission'') by virtue of position:

(1) The Delaware Attorney General.

(2) The Secretary of the State Department of Health and Social Services.

(3) The Director of the Delaware Division of Forensic Science.

(4) The Secretary of Safety and Homeland Security.

(5) The Director of the Delaware Division of Public Health.

(6) The Commissioner of the Delaware Department of Correction.

(b) The following persons shall be appointed by the Governor as members of the Commission:

(1) Two representatives of the Medical Society of Delaware.

(2) A representative of the Delaware Nurses Association.

(3) A representative of the Police Chiefs Council of Delaware who is an active law-enforcement officer.

(4) A representative of the Delaware Fraternal Order of Police who is an active law-enforcement officer.

(5) Two advocates from statewide nonprofit organizations.

(6) A representative of the Delaware Healthcare Association.

(c) The chairperson of each regional review team established pursuant to subsection (g) of this section shall also serve as a member of the Commission.

(d) The term of members appointed by the Governor shall be 3 years and shall terminate upon the Governor's appointment of a new member to the Commission. The members of the Commission and regional review teams shall serve without compensation. The Commission shall be staffed by the Delaware Department of Justice.

(e) The Commission shall, by affirmative vote of a majority of all members of the Commission, appoint a chairperson from its membership for a term of 1 year.

(f) Meetings of the Commission and regional review teams shall be closed to the public.

(g) The Commission shall by resolution passed by a majority of its members establish 3 regional review teams authorized to review overdose deaths involving opiates, fentanyl and/or heroin. Members of the Commission shall appoint representatives to each review team such that the review team reflects the disciplines of the Commission.

80 Del. Laws, c. 220, § 1; 81 Del. Laws, c. 94, § 2.;

(a) The Commission shall investigate and review the facts and circumstances of all overdose deaths involving opiates, fentanyl or heroin which occur in Delaware. The review of deaths involving criminal investigations will be delayed until the later of the conclusion of such investigation, or the adjudication of related criminal charges, if any. The Commission shall make recommendations to the Governor and General Assembly, at least annually, regarding those practices or conditions which impact the frequency of overdose deaths involving opiates, fentanyl or heroin, and steps that can be taken to reduce the frequency of such overdose deaths. All recommendations made pursuant to this subsection shall comply with applicable state and federal confidentiality provisions, including but not limited to those enumerated in § 4799D of this title. Notwithstanding any provision of this subchapter to the contrary, no recommendation shall specifically identify any individual or any nongovernmental agency, organization or entity.

(b) Reviews conducted by the Commission and regional review teams shall in all cases include a review of the medical records of the deceased.

(c) In connection with any review, the Commission and regional review teams shall have the power and authority to:

(1) Administer oaths; and

(2) Compel the attendance of witnesses whose testimony is related to the overdose death under review and the production of any records related to the death or pertinent to the Commission's investigation, through the use of process issued by the Department of Justice pursuant to § 2508 of Title 29.

(d) Notwithstanding any provision of this subchapter to the contrary, no person identified by the Department of Justice as a potential witness in any criminal prosecution arising from an overdose death shall be questioned, deposed or interviewed by or for the Commission in connection with its investigation and review of such death until the completion of such prosecution.

80 Del. Laws, c. 220, § 1; 81 Del. Laws, c. 94, § 2.;

(a) The records of the Commission and of all regional review teams, including original documents and documents produced in the review process with regard to the facts and circumstances of each death, shall be confidential and shall not be released to any person except as expressly provided in this subchapter. Such records shall be used by the Commission, and any regional review team, only in the exercise of the proper function of the Commission or review team, and shall not be public records and shall not be available for court subpoena or subject to discovery. Subject to constitutional requirements, statements, records or information shall not be subject to any statute or rule that would require those statements to be disclosed in the course of a criminal trial or associated discovery. Aggregate statistical data compiled by the Commission or regional review teams, however, may be released at the discretion of the Commission or regional review teams.

(b) Members of the Commission and regional review teams, and their agents and employees, shall not be subject to, and shall be immune from, claims, suits, liability, damages or any other recourse, civil or criminal, arising from any act, proceeding, decision or determination undertaken or performed or recommendation made, provided such persons acted in good faith and without malice in carrying out their responsibilities authority, duties, powers and privileges of the offices conferred by this law upon them or any other provisions of the Delaware law, federal law or regulations, or duly adopted rules and regulations of the Commission or its regional review teams. Complainants shall bear the burden of proving malice or a lack of good faith to defeat the immunity provided herein.

(c) No person in attendance at a meeting of the Commission or regional review team shall be required to testify as to what transpired thereat. No organization, institution or person furnishing information, data, reports or records to the Commission or any regional review team with respect to any subject examined or treated by such organizations, institution, or person, by reason of furnishing such information, shall be liable in damages to any person or subject to any other recourse, civil or criminal.

80 Del. Laws, c. 220, § 1.;