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Del. Code tit. 16 ch. 51
Chapter 51
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§ 5101 Definitions [Repealed].
16 Del. C. 1953,
§
5101;
54 Del. Laws, c. 279,
§
2 ;
57 Del. Laws, c. 591,
§
22 ;
66 Del. Laws, c. 424,
§
5 ;
70 Del. Laws, c. 550,
§§
1, 5, 6 ;
repealed by 84 Del. Laws, c. 201, § 3, effective Sept. 11, 2023. ;
§ 5102 Authorization to receive federal fund; disposition [Repealed].
16 Del. C. 1953,
§
5104;
54 Del. Laws, c. 279,
§
2 ;
64 Del. Laws, c. 108,
§
25 ;
repealed by 84 Del. Laws, c. 201, § 3, effective Sept. 11, 2023. ;
§ 5103 Property; acquisition; holdings; disposition [Repealed].
16 Del. C. 1953,
§
5105;
54 Del. Laws, c. 279,
§
2 ;
70 Del. Laws, c. 550,
§
1 ;
73 Del. Laws, c. 97,
§
1 ;
repealed by 84 Del. Laws, c. 201, § 3, effective Sept. 11, 2023. ;
§ 5104 Donations of property; form of a devise or gift; the use of such property [Repealed].
16 Del. C. 1953,
§
5106;
54 Del. Laws, c. 279,
§
2 ;
repealed by 84 Del. Laws, c. 201, § 3, effective Sept. 11, 2023. ;
§ 5105 Accounting by Department [Repealed].
16 Del. C. 1953,
§
5107;
54 Del. Laws, c. 279,
§
2 ;
55 Del. Laws, c. 186 ;
repealed by 84 Del. Laws, c. 201, § 3, effective Sept. 11, 2023. ;
§ 5106 Cost of maintaining Department, institutions and agencies [Repealed].
16 Del. C. 1953,
§
5108;
54 Del. Laws, c. 279,
§
2 ;
57 Del. Laws, c. 591,
§
23 ;
repealed by 84 Del. Laws, c. 201, § 3, effective Sept. 11, 2023. ;
§ 5107 Sale of products made in institutions [Repealed].
16 Del. C. 1953,
§
5109;
54 Del. Laws, c. 279,
§
2 ;
repealed by 84 Del. Laws, c. 201, § 3, effective Sept. 11, 2023. ;
§ 5108 Operation of commissaries [Repealed].
16 Del. C. 1953,
§
5110;
54 Del. Laws, c. 279,
§
2 ;
repealed by 84 Del. Laws, c. 201, § 3, effective Sept. 11, 2023. ;
§ 5109 Secretary of the Department of Health and Social Services; duties; heads of institutions and agencies [Repealed].
16 Del. C. 1953,
§
5111;
54 Del. Laws, c. 279,
§
2 ;
57 Del. Laws, c. 243 ;
58 Del. Laws, c. 124 ;
59 Del. Laws, c. 253,
§
4 ;
62 Del. Laws, c. 209,
§
1 ;
64 Del. Laws, c. 108,
§
26 ;
70 Del. Laws, c. 550,
§
7 ;
75 Del. Laws, c. 285,
§
3 ;
repealed by 84 Del. Laws, c. 201, § 3, effective Sept. 11, 2023. ;
Delaware General Assembly
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§ 5137 Legislative intent; definitions.
(a) Legislative intent. — The General Assembly’s purpose in requiring criminal background checks and drug testing of Department of Health and Social Services’ employees working at the Delaware Psychiatric Center is to protect the safety and well-being of the patients and staff of such facility. The provisions of this subchapter shall be broadly construed to accomplish this purpose.
(b) Definitions. — (1) “Applicant” means any of the following:
a. A person seeking employment with the Department in any position at the Delaware Psychiatric Center; or
b. A current Department employee who seeks a promotion or transfer to any position at the Delaware Psychiatric Center; or
c. A former employee who consents prior to leaving employment to periodic review of that former employee’s criminal background for a fixed period of time.
(2) “Background Check Center (BCC)” means the electronic system which combines the data streams from various sources within and outside the State of Delaware in order to assist an employer in determining the suitability of a person for employment.
(3) “Criminal history” means a report from the Department of Health and Social Services regarding its review of the applicant’s entire federal criminal history from the Federal Bureau of Investigation, pursuant to Public Law 92-544 as amended (28 U.S.C. § 534) and the applicant’s Delaware record from the State Bureau of Identification.
(4) “Department” means the Department of Health and Social Services;
(5) “Grandfathered employee” means an employee of the Delaware Psychiatric Center, who was not fingerprinted pursuant to this statute because the employment commenced before June 15, 2010, and no requirement for fingerprinting has since applied (see paragraph (b)(1) of this section above).
(6) “Reasonable suspicion” means the Department, acting through its supervisory personnel, has a reasonable basis to suspect that a Delaware Psychiatric Center employee:
a. Has been convicted of a disqualifying crime since becoming employed; or
b. Is impaired by an illegal drug. 77 Del. Laws, c. 292,
§
1 ;
70 Del. Laws, c. 186,
§
1 ;
78 Del. Laws, c. 303,
§
4 ;
84 Del. Laws, c. 42,
§
1 ;
§ 5138 Criminal background checks.
(a) The Department shall not hire or employ an applicant for any position at the Delaware Psychiatric Center without first obtaining a report of the person’s criminal history.
(b) The Department shall promulgate regulations establishing the criteria for unsuitability for employment, including the types of criminal convictions which shall automatically disqualify a person from working at the Delaware Psychiatric Center and, as to other criminal convictions, the criteria for determining whether a particular individual is unsuitable for employment at the Delaware Psychiatric Center.
(c) Conditional hire. — The requirements of subsection (a) of this section may be suspended for 60 days if the employer wishes to employ the applicant on a conditional basis. Before an employer may offer conditional employment, the employer must receive verification that the applicant has been fingerprinted by the SBI for purposes of the criminal history. No criminal history will be issued if the applicant fails to provide information to the Department regarding the status or disposition of an arrest within 45 days from the date of notice from the Department of an open criminal charge.
(d) The Department shall immediately terminate the employment any Delaware Psychiatric Center employee who is, or has been, convicted of any disqualifying crime upon notification of such conviction.
(e) The criminal history information provided to the employer, is strictly confidential. It may be used solely to determine the suitability of an applicant for employment or continued employment at the Delaware Psychiatric Center.
(f) Before an applicant is permitted to be employed at the Delaware Psychiatric Center, the applicant must, upon request:
(1) Provide accurate information sufficient to get a criminal history;
(2) Execute a full release to enable the employer to secure a criminal history and to periodically update the criminal history while employed;
(g) An applicant who fails to comply with subsection (f) of this section is subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.
(h) All grandfathered employees must be fingerprinted by the SBI within 120 days from the date of BCC (see § 7972(a) of Title 29) implementation. SBI:
(1) Shall use the fingerprints to establish the grandfathered employee’s identity and to assign an SBI identification number for the sole purpose of enabling the person’s criminal record to be monitored for new arrests while the grandfathered employee continues to work at a long-term care facility, as defined in § 1102 of this title.
(2) Shall not run a state or federal background check of the grandfathered employee, unless the grandfathered employee is also an applicant as defined in § 5137(b) of this title above;
(3) Shall comply with § 1911 of Title 11. 77 Del. Laws, c. 292,
§
1 ;
70 Del. Laws, c. 186,
§
1 ;
78 Del. Laws, c. 303,
§
4 ;
81 Del. Laws, c. 207,
§
4 ;
§ 5139 Drug testing required.
(a) Preemployment testing. — The Department shall not hire or employ an applicant for any position at the Delaware Psychiatric Center without first obtaining the results of such applicant’s mandatory drug screening.
(b) Reasonable suspicion testing. — The Department, acting through its supervisory personnel, may also conduct a drug test based on a reasonable suspicion that a Delaware Psychiatric Center employee is impaired by an illegal drug.
(c) Any person applying for employment with the Department in a position at the Delaware Psychiatric Center shall be required to submit to mandatory drug screening pursuant to this section and the regulations promulgated by the Department. Such regulations shall require drug testing for the following controlled substances:
(1) Marijuana/cannabis;
(2) Cocaine;
(3) Opiates;
(4) Phencyclidine (“PCP”);
(5) Amphetamines;
(6) Any other controlled substances specified by the Department in the regulations promulgated pursuant to this subchapter.
(d) Conditional hire. — Notwithstanding the provisions of this section, whenever exigent circumstances exist, and the Department must fill a position in order to maintain an appropriate level of patient care, the Department may hire an applicant on a conditional basis when the Department receives evidence that the applicant has actually had the appropriate drug screening. The final employment of any applicant conditionally hired pursuant to this subsection shall be contingent upon receipt of the results of the drug screening. In addition, all applicants conditionally hired pursuant to § 5138 of this title shall be informed and acknowledge in writing that the results of those applicants’ drug screens have been requested. Under no circumstances shall an applicant hired on a conditional basis pursuant to this subchapter remain employed on a conditional basis for more than 2 months.
(e) Any applicant who wilfully fails to comply with the requirements of this section shall be subject to a civil penalty of not less than $1,000 nor more than $5,000.
(f) The Department shall adopt policies and procedures for imposing sanctions, which may include suspension and termination, upon any Delaware Psychiatric Center employee whose drug screen indicates that such employee has consumed an illegal drug or drugs. However, no such employee shall be sanctioned when the person has used or consumed the drug or drugs detected according to the directions and terms of a lawfully obtained prescription for such drug or drugs. 77 Del. Laws, c. 292,
§
1 ;
70 Del. Laws, c. 186,
§
1 ;
78 Del. Laws, c. 303,
§
4 ;
Delaware General Assembly
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§ 5121 Voluntary admission procedure [Repealed].
19 Del. Laws, c. 644,
§§
1-6 ;
Code 1915,
§
2598;
36 Del. Laws, c. 243,
§
1 ;
Code 1935,
§
3074;
45 Del. Laws, c. 219,
§
1 ;
16 Del. C. 1953,
§
5121;
54 Del. Laws, c. 279,
§
3 ;
70 Del. Laws, c. 550,
§
1 ;
78 Del. Laws, c. 360,
§
1 ;
repealed by 81 Del. Laws, c. 79, § 23, eff. July 17, 2017. ;
§ 5121A Emergency detention of a person with a mental condition; justification; procedure [Repealed].
36 Del. Laws, c. 242,
§
1 ;
Code 1935,
§
3072;
42 Del. Laws, c. 134,
§
2 ;
16 Del. C. 1953,
§
5122;
55 Del. Laws, c. 229 ;
61 Del. Laws, c. 447,
§
1 ;
66 Del. Laws, c. 424,
§
6 ;
68 Del. Laws, c. 308,
§§
1-3 ;
70 Del. Laws, c. 186,
§
1 ;
70 Del. Laws, c. 550,
§§
1, 8-10 ;
75 Del. Laws, c. 349,
§
2 ;
78 Del. Laws, c. 360,
§
1 ;
repealed by 81 Del. Laws, c. 79, § 24, eff. July 17, 2017. ;
§ 5122 Emergency detention of a person with a mental condition; justification; procedure [Repealed].
36 Del. Laws, c. 242,
§
1 ;
Code 1935,
§
3072;
42 Del. Laws, c. 134,
§
2 ;
16 Del. C. 1953,
§
5122;
55 Del. Laws, c. 229 ;
61 Del. Laws, c. 447,
§
1 ;
66 Del. Laws, c. 424,
§
6 ;
68 Del. Laws, c. 308,
§§
1-3 ;
70 Del. Laws, c. 186,
§
1 ;
70 Del. Laws, c. 550,
§§
1, 8-10 ;
75 Del. Laws, c. 349,
§
2 ;
78 Del. Laws, c. 360,
§
1 ;
79 Del. Laws, c. 7,
§
1 ;
repealed by 79 Del. Laws, c. 442, § 2, eff. Oct. 14, 2014. ;
§ 5123 Voluntary hospitalization of patients at Delaware Psychiatric Center; authority to receive; procedure; discharge [Repealed].
19 Del. Laws, c. 644,
§§
1-6 ;
Code 1915,
§
2598;
36 Del. Laws, c. 243,
§
1 ;
Code 1935,
§
3074;
45 Del. Laws, c. 219,
§
1 ;
16 Del. C. 1953,
§
5123;
55 Del. Laws, c. 227 ;
58 Del. Laws, c. 218 ;
58 Del. Laws, c. 511,
§§
31, 32 ;
62 Del. Laws, c. 207,
§
1 ;
66 Del. Laws, c. 424,
§§
7, 8 ;
70 Del. Laws, c. 186,
§
1 ;
70 Del. Laws, c. 550,
§
1 ;
78 Del. Laws, c. 360,
§
1 ;
79 Del. Laws, c. 442,
§
2 ;
repealed by 81 Del. Laws, c. 79, § 25, eff. July 17, 2017. ;
§ 5127 Liability for maintenance of patient; collection remedies [Repealed].
18 Del. Laws, c. 553,
§
6 ;
19 Del. Laws, c. 125,
§
1 ;
19 Del. Laws, c. 126 ;
Code 1915,
§
2600;
28 Del. Laws, c. 212,
§
1 ;
37 Del. Laws, c. 189 ;
Code 1935,
§
3076;
16 Del. C. 1953,
§
5127;
54 Del. Laws, c. 279,
§
3 ;
55 Del. Laws, c. 212 ;
58 Del. Laws, c. 151 ;
70 Del. Laws, c. 186,
§
1 ;
70 Del. Laws, c. 550,
§
1 ;
78 Del. Laws, c. 360,
§
1 ;
repealed by 79 Del. Laws, c. 442, § 2, eff. Oct. 14, 2014. ;
§ 5128 Expenses of examination and removal of indigent patients [Repealed].
18 Del. Laws, c. 553,
§
6 ;
19 Del. Laws, c. 125,
§
1 ;
19 Del. Laws, c. 126 ;
Code 1915,
§
2600;
28 Del. Laws, c. 212,
§
1 ;
37 Del. Laws, c. 189 ;
Code 1935,
§
3076;
16 Del. C. 1953,
§
5128;
57 Del. Laws, c. 228,
§
6 ;
70 Del. Laws, c. 550,
§
1 ;
78 Del. Laws, c. 360,
§
1 ;
repealed by 79 Del. Laws, c. 442, § 2, eff. Oct. 14, 2014. ;
§ 5130 Veterans Administration hospitals [Repealed].
16 Del. C. 1953,
§
5131;
50 Del. Laws, c. 310,
§
1 ;
78 Del. Laws, c. 360,
§
1 ;
repealed by 79 Del. Laws, c. 442, § 2, eff. Oct. 14, 2014. ;
§ 5131 Discharge of patients at Delaware Psychiatric Center; release on convalescent status; continued responsibility; review of convalescent status [Repealed].
16 Del. C. 1953,
§
5132;
55 Del. Laws, c. 225,
§
2 ;
70 Del. Laws, c. 186,
§
1 ;
70 Del. Laws, c. 550,
§
1 ;
78 Del. Laws, c. 360,
§
1 ;
repealed by 79 Del. Laws, c. 442, § 2, eff. Oct. 14, 2014. ;
§ 5132 Return of patients; order; notice; custody [Repealed].
16 Del. C. 1953,
§
5133;
55 Del. Laws, c. 225,
§
2 ;
70 Del. Laws, c. 186,
§
1 ;
70 Del. Laws, c. 550,
§
11 ;
73 Del. Laws, c. 41,
§
1 ;
77 Del. Laws, c. 327,
§
210(a) ;
78 Del. Laws, c. 360,
§
1 ;
repealed by 79 Del. Laws, c. 442, § 2, eff. Oct. 14, 2014. ;
§ 5133 Unwarranted hospitalization in Delaware Psychiatric Center or denial of rights; penalties [Repealed].
16 Del. C. 1953,
§
5134;
55 Del. Laws, c. 226 ;
70 Del. Laws, c. 186,
§
1 ;
70 Del. Laws, c. 550,
§
1 ;
78 Del. Laws, c. 360,
§
1 ;
repealed by 79 Del. Laws, c. 442, § 2, eff. Oct. 14, 2014. ;
§ 5134 Examinations of persons relative to parole, pardon or commutation of sentence in case of certain crimes [Repealed].
16 Del. C. 1953,
§
5135;
57 Del. Laws, c. 593,
§
1 ;
64 Del. Laws, c. 467,
§
6 ;
70 Del. Laws, c. 186,
§
1 ;
70 Del. Laws, c. 550,
§
1 ;
73 Del. Laws, c. 41,
§
1 ;
75 Del. Laws, c. 285,
§§
8-10 ;
78 Del. Laws, c. 360,
§
1 ;
repealed by 79 Del. Laws, c. 442, § 2, eff. Oct. 14, 2014. ;
§ 5135 Minors [Repealed].
66 Del. Laws, c. 424,
§
9 ;
70 Del. Laws, c. 550,
§
1 ;
78 Del. Laws, c. 360,
§
1 ;
repealed by 79 Del. Laws, c. 442, § 2, eff. Oct. 14, 2014. ;
§ 5136 Additional facilities for adults [Repealed].
68 Del. Laws, c. 308,
§
4 ;
70 Del. Laws, c. 550,
§
1 ;
78 Del. Laws, c. 360,
§
1 ;
repealed by 79 Del. Laws, c. 442, § 2, eff. Oct. 14, 2014. ;
Delaware General Assembly
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§ 5141 Establishment and composition [Repealed].
36 Del. Laws, c. 241,
§
1 ;
Code 1935,
§
3073;
16 Del. C. 1953,
§
5141;
53 Del. Laws, c. 84,
§
2 ;
54 Del. Laws, c. 279,
§
3 ;
57 Del. Laws, c. 591,
§
24 ;
repealed by 84 Del. Laws, c. 201, § 4, effective Sept. 11, 2023. ;
§ 5142 Duties and powers of clinic [Repealed].
36 Del. Laws, c. 241,
§§
1, 2 ;
Code 1935,
§
3073;
16 Del. C. 1953,
§
5142;
55 Del. Laws, c. 212 ;
70 Del. Laws, c. 550,
§
1 ;
repealed by 84 Del. Laws, c. 201, § 4, effective Sept. 11, 2023. ;
Delaware General Assembly
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§ 5151 Establishment of department for persons with criminally mental conditions.
The Department shall establish at the Delaware Psychiatric Center a department for persons with criminally mental conditions who are adults regardless of their mental capacity. The term “persons with criminally mental conditions” as used herein shall be defined as any incarcerated individual, charged with or convicted of any criminal offense under this Code who also meets the definition set forth at § 5001(7) of this title [repealed]. The department shall be established on the present grounds of the Psychiatric Center. Code 1935, c. 76;
46 Del. Laws, c. 190,
§
1 ;
16 Del. C. 1953,
§
5151;
49 Del. Laws, c. 57,
§
1 ;
54 Del. Laws, c. 279,
§
3 ;
55 Del. Laws, c. 212 ;
70 Del. Laws, c. 550,
§
1 ;
76 Del. Laws, c. 322,
§§
7, 8 ;
78 Del. Laws, c. 179,
§§
189-191 ;
79 Del. Laws, c. 442,
§
1 ;
§ 5152 Commitment by courts.
(a) All persons with criminally mental conditions who are adults shall be admitted to the department for persons with criminally mental conditions at the Delaware Psychiatric Center for evaluation and/or treatment when committed by any court of this State having jurisdiction over the persons committed.
(b) All criminally inclined juveniles amenable to the processes of Family Court shall be committed to treatment programs for criminally inclined juveniles established by the Department of Services for Children, Youth and Their Families when committed by any court of this State having jurisdiction over the persons committed.
(c) Jurisdiction to order and review commitments under this subchapter is conferred upon any court:
(1) Which presides over any active matter in which the person with a criminally mental condition is a defendant or respondent; or
(2) Which entered the most recent sentencing order regarding the person with a criminally mental condition. Code 1935, c. 76;
46 Del. Laws, c. 190,
§
2 ;
16 Del. C. 1953,
§
5152;
49 Del. Laws, c. 57,
§
1 ;
66 Del. Laws, c. 424,
§
10 ;
70 Del. Laws, c. 550,
§
1 ;
76 Del. Laws, c. 322,
§§
9-12 ;
78 Del. Laws, c. 179,
§§
192-196 ;
§ 5153 Commitment from other institutions.
The governing authorities of any institution of this State, including but not limited to those facilities maintained by the Department of Correction, to which an adult or juvenile who is nonamenable to the processes of Family Court who classifies for admission under the terms of this subchapter already has been committed may request an order to temporarily remove an inmate of the institution to the department for persons with criminally mental conditions at the Delaware Psychiatric Center or other authorized institutions for suitable for nonamenable juveniles as follows:
(1) By petition to any court of competent jurisdiction in the State; or
(2) In the case of any individual within the custody of the Department of Correction, by certification of the Commissioner of Correction, Bureau Chief of Prisons, Bureau Chief of Community Correction, or Director of Healthcare Services, that:
a. The inmate or offender is currently suffering from a mental disease or condition which requires such person to be observed and treated at a mental hospital for the person’s own welfare and which both:
1. Renders such person unable to make responsible decisions with respect to the person’s health; and
2. Poses a real and present threat, based upon manifest indications, that such person is likely to commit or suffer serious harm to that person’s own self or others or to property if not given immediate hospital care and treatment;
b. The inmate or offender is currently recommended by correctional medical staff for immediate or emergent psychiatric care or stabilization;
c. That the Department of Correction cannot provide the level of care required to treat the inmate or offender; and
d. The inmate or offender has received all of the process due to the inmate or offender under the Department of Correction policies and/or procedures.
(3) Upon receipt of any inmate or offender into the department for persons with criminally mental conditions by the process stated herein, the inmate or offender shall be treated as a provisional admittee and may only be housed at the location designated for the housing of persons with criminally mental conditions. The Department of Health and Social Services shall proceed under Chapter 50 of this title with respect to any decision to commit offenders transferred from the Department of Correction on an emergency basis. Code 1935, c. 76;
46 Del. Laws, c. 190,
§
3 ;
16 Del. C. 1953,
§
5153;
49 Del. Laws, c. 57,
§
1 ;
57 Del. Laws, c. 591,
§
25 ;
66 Del. Laws, c. 424,
§
10 ;
70 Del. Laws, c. 550,
§
1 ;
76 Del. Laws, c. 322,
§
13 ;
78 Del. Laws, c. 179,
§§
197, 198 ;
§ 5154 Liability for cost of maintenance and care.
The expenses of the removal of an adult with a criminally mental condition or a criminally inclined juvenile and of the adult’s or juvenile’s admission to a hospital under this subchapter, and the charges and expense for the maintenance and care at such hospital shall be paid by the institution which had charge of such case. Where such persons are committed by the proper courts otherwise than from an institution of the State, the State Treasurer shall pay such hospital for such removal, admission, maintenance and care. If any such adult with a criminally mental condition or criminally inclined juvenile has any real or personal estate, the Department of Health and Social Services or the Department of Services for Children, Youth and Their Families shall have, for the expenses and charges incurred, the same remedy as is provided in § 5019 of this title. Code 1935, c. 76;
46 Del. Laws, c. 190,
§
4 ;
16 Del. C. 1953,
§
5154;
49 Del. Laws, c. 57,
§
1 ;
55 Del. Laws, c. 85,
§
35B ;
57 Del. Laws, c. 228,
§
7 ;
66 Del. Laws, c. 424,
§
10 ;
70 Del. Laws, c. 186,
§
1 ;
78 Del. Laws, c. 179,
§§
199, 200 ;
79 Del. Laws, c. 442,
§
2 ;
81 Del. Laws, c. 79,
§
26 ;
Delaware General Assembly
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Executive
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§ 5161 Rights of patients in mental health hospitals or residential centers.
(a) As used in this section:
(1) “Department ” means the Department of Health and Social Services, except that Department means the Department of Services for Children, Youth and Their Families for facilities certified under §§ 5025(a) and 5001(9) of this title.
(2) “Protection and advocacy agency” means the Community Legal Aid Society, Inc. or successor agency designated the state protection and advocacy system pursuant to the following:
a. Protection and Advocacy for Individuals with Mental Illness Act (42 U.S.C. § 10801 et seq.);
b. Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 15001 et seq.); or
c. Protection and Advocacy for Individual Rights (29 U.S.C. § 794e).
(3) For purposes of persons admitted pursuant to Chapter 55 of this title, the term “treatment” includes habilitation and the term “patient” means resident.
(b) Any hospital or residential center that admits persons pursuant to Chapter 50, 51, or 55 of this title shall prominently post in English and Spanish the list of patient rights set forth in this subsection. In addition to the posting, the Department shall distribute a copy of the list to each patient and to other persons, as provided in Department regulations. Each patient shall have the rights listed below, which shall be liberally construed to fulfill their beneficial purposes. Furthermore, in defining the scope or extent of any duty imposed by this section, higher or more comprehensive obligations established by otherwise applicable federal, state, or local enactments as well as certification standards of accrediting agencies may be considered.
(1) Each patient shall receive care and treatment suited to the patient’s needs, skillfully, safely and humanely administered with full respect for the patient’s dignity and personal integrity. The care and treatment shall be provided in a setting and under conditions that restrict the patient’s personal liberty only to the extent required by the patient’s treatment needs, applicable law and judicial orders.
(2) Each patient shall have an outcome-oriented, individualized, written treatment plan; treatment based on such plan; periodic review or revision of the plan consistent with treatment progress; and a description of treatment and other support services that may be needed upon discharge.
(3) Each patient, and, if the patient is a minor, the patient’s parents or legal guardian shall have the right to ongoing participation in a manner appropriate to the patient’s capabilities, in the development and revision of an individualized treatment plan. In furtherance of this right, each patient, and, if the patient is a minor, the patient’s parents or legal guardian shall minimally be provided with a reasonable explanation of the following:
a. The patient’s general mental condition and, if a facility has provided a physical examination, the patient’s general physical condition;
b. The objectives of treatment and the reasons why a particular treatment is considered appropriate;
c. The expected benefits and risks of recommended treatments, including all significant potential adverse effects and the steps which may be taken to obviate or ameliorate such effects;
d. The nature, duration and expected benefits and risks of any alternative treatments that are available.
(4) Prior to discharge, the facility shall prepare a written continuing care plan developed in consultation with interdisciplinary staff, anticipated post-discharge providers and the patient, and, if the patient is a minor, with the patient’s parents or legal guardian. At a minimum, Departmental community-based services staff shall be consulted for adult patients in Departmental facilities. The continuing care plan shall include:
a. A realistic assessment of the patient’s post-discharge social, financial, vocational, housing and treatment needs;
b. Identification of available support services and provider linkages necessary to meet the assessed needs; and
c. Identification and a timetable of discrete, predischarge activities necessary to promote the patient’s successful transition to the community-based services system or to another appropriate post-discharge setting.
(5) Absent a patient’s informed, voluntary, written consent to a mode or course of treatment, each patient shall have the right not to receive the mode or course of treatment established pursuant to a treatment plan, except as follows:
a. During an emergency situation, if such treatment is pursuant to and documented contemporaneously by the written order of a physician; or
b. As authorized under applicable law or court order in the case of a person involuntarily committed to the facility; or
c. In the case of a minor, as authorized by a parent or legal guardian.
(6) Each patient shall have the right to be free from the following:
a. Abuse, mistreatment and neglect, as proscribed by Chapters 9 and 11 of this title.
b. Unjustifiable force, as defined by § 468 of Title 11;
c. Seclusion, physical restraint, drugs or other interventions administered primarily for purposes of staff convenience; provided, however, that restraint or seclusion may be administered pursuant to and documented contemporaneously by the written order of an authorized, licensed mental health professional to the extent necessary to prevent physical harm to self or others. Administration of restraint under this subsection shall include the following safeguards:
1. Authorizing orders shall specify the form, duration, and conditions of restraint based on a deliberative determination that the restraint is the least restrictive alternative intervention to prevent physical harm to the patient or others;
2. The patient shall receive a medical examination within an hour of initiation of restraint by a physician, or, if a physician is not available, a nurse;
3. During the course of restraint the patient shall be closely monitored to assess well-being and facilitate prompt discontinuation of restraint when no longer necessary to prevent physical harm to the patient or others;
4. Subsequent to administration of restraint, an interactive clinical assessment shall be undertaken, which includes the patient, and, at the request of the patient, a representative of the protection and advocacy agency, to review catalysts resulting in the necessity of the restraint and appropriateness of revision to the individualized treatment plan.
(7) Each patient shall be advised of the availability of any internal and external systems for reporting abuse, neglect and mistreatment, including those established by Chapters 9 and 11 of this title and the protection and advocacy agency.
(8) The hospital or residential center shall require:
a. Careful reexamination and evaluation of each patient not less than every 6 months;
b. Periodic physical examination of each patient by a physician at least once a year;
c. An order of a staff member, operating within the scope of a professional authority and based upon appropriate examination, before any treatment is administered;
d. Written, informed consent by the patient, or, if the patient is a minor, a parent or legal guardian, for surgery, electro-convulsive therapy, major medical treatment in the nature of surgery or the use of research, investigational or experimental drugs or procedures; and
e. Notation in the patient’s clinical record, signed by the personnel involved, of periodic examinations, individualized treatment programs, evaluations, reevaluations and of orders for treatment and specific therapies.
(9) Each patient shall be entitled to communicate freely and privately with persons and groups inside and outside the facility, consistent with the safety and welfare of other patients and with avoiding serious harassment of others. Correspondence initiated to others by the patient shall be sent along promptly without being opened. The facility shall establish procedures to insure that patients have a full opportunity to conduct correspondence, to have reasonable and confidential access to telephones, and, subject to treatment team limitation based on a clinical determination of serious patient harm, to have frequent and convenient opportunities to meet with visitors. Any treatment team’s limitation of such patient communication shall be documented in the patient’s treatment plan and shall include the team’s specific rationale.
(10) A patient’s right to retain reasonable personal belongings shall be respected, except that the facility may temporarily retain custody of a patient’s personal property for the patient’s protection; provided, that such property is used or conserved for the support of the patient. The patient is entitled to a receipt for any personal property over which the facility retains temporary custody. Nothing in this paragraph shall be construed to relieve any patient from the obligations arising out of § 5019 of this title.
(11) Each patient shall have the right to participate in available vocational rehabilitation, community care or release programs consistent with the patient’s treatment plan. It is recognized that work programs can be therapeutic and, therefore, may be included in a patient’s individualized treatment plan provided that the following conditions are met:
a. The facility must document in the individualized treatment plan the patient’s need or desire for work;
b. The individualized treatment plan must specify the nature of the work to be performed and whether the work is to be voluntary or paid;
c. The patient must consent to the work program described in the treatment plan; and
d. The patient must be aware that the patient may withdraw consent to the work program at any time.
To the extent specifically authorized by the Department of Labor, workers’ compensation law and unemployment insurance law shall not apply to any patient engaged in work programs pursuant to this paragraph.
(12) Each patient who, but for a mental disability, would be entitled to attend a public school shall receive the same training and education that the patient would otherwise be entitled to receive in the patient’s local school district. The facility shall arrange for such training and education, which shall be consistent with the mental ability of the patient, and shall arrange for suitable resources and equipment to address the needs of those patients with visual or hearing impairments.
(13) The hospital or residential center shall maintain a clinical record for each patient admitted. The clinical record shall contain complete information on all matters relating to the admission, legal status, care and treatment of the patient, and shall include all pertinent documents relating to the patient. Copies of informed consent forms signed by patients or guardians pursuant to paragraph (b)(8)d. of this section shall be kept with each patient’s ward chart. The Department shall, by regulation, determine the scope and method of recording information maintained on the clinical records. Those regulations shall ensure the completeness and accuracy of data pertaining to admission, legal matters affecting the patient, records and notations of the course of care and treatment, therapies, the patient’s progress if in research and adverse or other reactions thereto, restrictions on the patient’s rights, periodic examinations and other information required by the Department.
No information reported to the Department and no clinical records maintained with respect to patients shall be public records. Such information and records shall not be released to any person or agency outside of the Department except in conformity with existing law and as follows:
a. To patients, or, if the patient is a minor, to a parent or legal guardian, except that access to specific records may be refused when a clinical determination is made and documented in the patient’s individualized treatment plan that such access would be seriously detrimental to the patient’s health or treatment progress. In the latter case, such material may be made available to a licensed mental health professional selected by the patient, and that professional may, in the exercise of professional judgment, provide the patient with access to any or all parts of the denied material or otherwise disclose the information contained therein. Whenever records are released in accordance with this paragraph, the recipient shall have the right to review the record with a mental health professional furnished by the facility;
b. Pursuant to an order of a court of record;
c. To attorneys representing the patient;
d. To rights-protection agencies otherwise entitled to access under applicable federal or state law or implementing interagency agreement, including the Office of the Long-Term Care Ombudsperson and the protection and advocacy agency;
e. With the consent of the patient, or, if the patient is a minor, with the consent of a parent or legal guardian;
f. To Departmental contractors to the extent necessary for professional consultation or services;
g. To the State Bureau of Identification pursuant to § 8509 of Title 11 and to the Federal Bureau of Investigation, National Instant Criminal Background Check System pursuant to § 1448A of Title 11; and
h. As requested by the Maternal and Child Death Review Commission, the Child Protection Accountability Commission, or the Drug Overdose Fatality Commission pursuant to an investigation or review; and
i. As otherwise required by law.
(14) The Delaware Psychiatric Center and any other hospital as defined in § 5001(9) of this title shall, under § 1448A of Title 11, cause to be submitted to the State Bureau of Identification (SBI) information as may be required to comply with federal laws and regulations relating to background checks for the purchase or transfer of firearms. The information must include only names and other nonclinical identifying information of persons so committed. The SBI shall transmit the information, as may be required by law, to the FBI for use in its National Instant Criminal Background Check System (NICS).
(15) Each patient, and, if the patient is a minor, the minor’s parent or legal guardian, shall have the right to assert grievances with respect to infringement of the rights described in this section, including the right to have such grievances considered in a fair, timely and impartial grievance procedure provided for or by the facility. Without diminution of such right, the facility may also establish a supplemental mediation system to resolve grievances. The Department shall establish the grievance system for the Delaware Psychiatric Center, through regulation, which shall include the following features:
a. Availability of patient assistance in preparation and submission of grievance;
b. Right to present grievance in person or with the assistance of a representative, including the protection and advocacy agency, to an individual or group impartial decision maker;
c. Right to decision on routine grievance within reasonable time not to exceed 15 calendar days;
d. Availability of expedited processing for urgent or time-sensitive grievance; and
e. Availability of patient appeal to impartial review officer selected by the Department from an approved list compiled by the State Council for Persons with Disabilities and submitted to the Department.
(16) Each patient, and, if the patient is a minor, the minor’s parent or legal guardian, shall have a right to confidential access to any internal rights protection office established by the facility and to any state or federally authorized mental health ombudsperson or rights protection agency.
(17) Each patient shall have the right to exercise the rights described in this section without reprisal, including reprisal in the form of denial of any appropriate, available treatment.
(18) Nothing in this section or in any rule or regulation adopted pursuant thereto shall be construed to deny treatment by spiritual means through prayer for any patient detained for evaluation or treatment who desires spiritual treatment, or to a minor, if the minor’s parent or guardian desires such treatment.
(19) Consistent with the nature of the right and applicable law, a right may devolve to the patient’s guardian.
(20) The rights described above are in addition to, and not in derogation of, any other statutory or constitutional rights. 59 Del. Laws, c. 571,
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60 Del. Laws, c. 204,
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1 ;
64 Del. Laws, c. 421,
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1, 2 ;
64 Del. Laws, c. 467,
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66 Del. Laws, c. 424,
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11 ;
69 Del. Laws, c. 224,
§§
1, 4 ;
70 Del. Laws, c. 186,
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1 ;
70 Del. Laws, c. 222,
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70 Del. Laws, c. 550,
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75 Del. Laws, c. 361,
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8 ;
77 Del. Laws, c. 386,
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1-7 ;
78 Del. Laws, c. 137,
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1, 2 ;
79 Del. Laws, c. 442,
§§
1, 2 ;
80 Del. Laws, c. 187,
§
13 ;
81 Del. Laws, c. 79,
§
27 ;
81 Del. Laws, c. 94,
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3 ;
81 Del. Laws, c. 206,
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35 ;
83 Del. Laws, c. 330,
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5 ;
83 Del. Laws, c. 364,
§
2 ;
§ 5162 Notification of critical incidents and deaths, report forms.
(a) As used in this section:
(1) “Covered facility” means a hospital or residential center as defined in § 5161 of this title.
(2) “Critical incident” means the occurrence, within a covered facility, of the following events:
a. Attempted suicide;
b. Seclusion exceeding 15 minutes;
c. Physical restraint exceeding 5 minutes or involving injury; and
d. Victimization prompting solicitation of police intervention or investigation.
(3) “Death” means the demise of a current patient or resident of a covered facility. “Death” shall also include the demise of such a patient or resident within 14 calendar days of transfer to a medical or hospice facility.
(4) “Protection and advocacy agency” means the Community Legal Aid Society, Inc., or successor agency designated the state protection and advocacy system pursuant to the following:
a. Protection and Advocacy for Individuals with Mental Illness Act (42 U.S.C. § 10801 et seq.);
b. Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. § 15001 et seq.); or
c. Protection and advocacy for individual rights (29 U.S.C. § 794e).
(b) Notwithstanding any other provision of law, each covered facility shall notify the protection and advocacy agency in writing or electronically within 72 hours of all critical incidents and, upon request, facilitate protection and advocacy agency contact with the patient, resident, or authorized representative of the patient or resident.
(c) Notwithstanding any other provision of law, each covered facility shall notify the protection and advocacy agency within 72 hours of the date of any patient or resident death. Such notice shall include brief identifying information; contact information for the next of kin, administrator, or estate executor; the age of the patient or resident; the condition of the patient’s or resident’s health prior to death; and apparent cause of death.
(d) No person or covered facility shall be liable in any civil action by reason of provision of notice of a critical incident or death to the protection and advocacy agency in conformity with this section.
(e) Each covered facility shall cooperate with any assessment or investigation of a critical incident or death by the protection and advocacy agency. In furtherance of this duty, no covered facility shall discharge, discriminate, or retaliate against any person who provides the protection and advocacy agency with information or assistance in connection with an assessment or investigation of a critical incident or death. 77 Del. Laws, c. 202,
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§ 5163 Enforcement of rights; Court of Chancery.
This subchapter shall be enforceable by the Attorney General or by any interested citizen. Within the meaning of this section, “interested citizen” shall include any individual, voluntary association of individuals or corporate body having a bona fide interest in furthering enforcement of the rights created by this subchapter. Notwithstanding 10 Del. C. § 342, the Court of Chancery shall have jurisdiction over all actions, including those requesting declaratory relief, to enforce or resolve disputes concerning the rights arising out of this subchapter. 59 Del. Laws, c. 571,
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1 ;
70 Del. Laws, c. 222,
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2 ;
77 Del. Laws, c. 202,
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1 ;
Delaware General Assembly
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§ 5171 Definitions.
As used in subchapter:
(1) “Department” shall mean the Department of Health and Social Services or its successor.
(2) “Double blind research” shall mean research in which neither the patient nor the physician knows whether the patient is receiving medication or a placebo.
(3) “Hospital” means the Delaware Psychiatric Center or such other hospital in this State which is certified by the Secretary of the Department of Health and Social Services as being an appropriate facility for the diagnosis, care and treatment of mentally ill persons.
(4) “Informed consent” means 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.
(5) “Mentally ill person” means a person suffering from a mental disease or condition which requires such person to be observed and treated at the hospital for the person’s own welfare.
(6) “Patient” means any patient at the hospital.
(7) “Psychiatrist” means a physician licensed to practice medicine specializing in the field of psychiatry or a physician employed by the hospital, registered with the Medical Council of Delaware and certified by the hospital medical director to the Medical Council of Delaware as being qualified in the diagnosis and treatment of mentally ill persons. 64 Del. Laws, c. 421,
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70 Del. Laws, c. 186,
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70 Del. Laws, c. 550,
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§ 5172 Rules and regulations.
(a) Prior to the participation of any patient in pharmaceutical research, the Department shall adopt rules and regulations governing such research. Such rules and regulations shall conform to the requirements of the Food and Drug Administration and to this chapter. In the course of promulgating such rules and regulations, the Department shall request the assistance of the Food and Drug Administration and the State Police Drug Diversion Unit and shall hold at least 1 public hearing. The Department shall review the rules and regulations pertaining to pharmaceutical research annually.
(b) Department rules and regulations governing pharmaceutical research shall include, but not be limited to, the following provisions:
(1) No patient should be approached to participate in a pharmaceutical research program where the most recent certification by a psychiatrist indicates that the patient is incapable of voluntary consent to care or treatment, is unable to make responsible decisions regarding hospitalization or is mentally incompetent to waive legal rights. Patients who show marked improvement should be reevaluated only by psychiatrists who will receive no financial benefit from the research as to whether the patient is now fully competent before being approached about participation in research.
(2) Diagnosis of a patient’s condition prior to the patient’s participation in pharmaceutical research shall be done only by psychiatrist or psychiatrists who will receive no financial benefit from the research.
(3) Prior to the inclusion of a patient on a research project, examining psychiatrist or psychiatrists shall consider whether the patient would respond to accepted pharmaceutical or other therapies.
(4) To ensure that patients retain their capacity to freely consent to participate in research, patients shall be monitored by psychiatrists who will receive no financial benefit from the research.
(5) If any patient participating in a research project shall be found not to be mentally ill, the patient shall be removed from the research immediately.
(c) Any indemnification agreement which purports to bind the hospital shall be approved by a deputy attorney general representing the Department and by the Department before signature by the research psychiatrist.
(d) The use of state time shall be adequately documented so that research compensated by private companies is properly segregated from that time. 64 Del. Laws, c. 421,
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70 Del. Laws, c. 186,
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78 Del. Laws, c. 155,
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§ 5173 Institutional Review Board.
(a) The Department shall establish an Institutional Review Board which shall be composed of 12 members appointed by the Secretary of the Department. No more than 6 members shall be employed by the Department and no more than 3 members shall be employed by the hospital.
(b) The duties of the Institutional Review Board shall include, but not be limited to:
(1) Approval, modification or disapproval of all proposed pharmaceutical research programs and all written procedures and protocols governing such programs. Final approval of any program shall require an affirmative vote of 8 members. In evaluating any proposed research program, the Board shall consider whether the risks to patients are sufficiently outweighed by the potential benefits and the importance of the knowledge to be gained. In its deliberations, the Board shall be guided by the American Medical Association’s “Ethical Guidelines for Clinical Investigation,” the American Psychiatric Association’s “Ethical and Professional Guidelines Governing Research With Human Subjects” or similar documents.
(2) Ensuring that no patient participates in research who fits any exclusion criteria established by the pharmaceutical protocol or by the Board itself.
(3) Actively monitoring all such research programs on a regular basis. Such monitoring shall include the review of the effects of the research on patients and the review of individual patient records to ensure the continued protection of patient rights and continued compliance with regulations.
(4) Ensuring that the provisions of § 5175 of this title are complied with for every patient who participates in pharmaceutical research.
(5) Evaluating, together with the administration of the hospital and the Food and Drug Administration, all reactions and incidents which occur to research participants to determine whether the research pharmaceuticals in any way affected the patient so as to cause the reaction or incident.
(c) In order that the Board be active and effective, notices of meetings shall be sent to all members, minutes shall be maintained and distributed prior to meetings and all records, documents and correspondence shall be retained by an officer of the Board at the hospital. The Division of Mental Health shall provide administrative and secretarial assistance to support the Board’s functions.
(d) No member of the Board shall be permitted to vote on any research project in which the member has an active role or financial interest. 64 Del. Laws, c. 421,
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70 Del. Laws, c. 186,
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§ 5174 Patient participation restricted.
The following patients shall be ineligible to participate in pharmaceutical research:
(1) Any patient who has been placed in the jurisdiction of the hospital under Chapter 4 of Title 11 or § 5153 of this title; provided, however, that a patient placed in the jurisdiction of the hospital under Chapter 4 of Title 11 or § 5153 of this title shall be eligible with the prior approval of Superior Court, upon affidavit filed by the medical director of the hospital. Such affidavit shall state that the patient for whom eligibility to participate is sought has given the patient’s informed consent and that, with respect to that patient, all provisions of this subchapter have been and will continue to be complied with. The Court may deny approval for failure to comply with any provision of this subchapter or for any other reason it deems appropriate. Any affidavit filed pursuant to this subdivision shall be served upon the Attorney General, and no action shall be taken by the Court for 10 days after the date of such service. Superior Court may by rule prescribe procedures for review of affidavits filed pursuant to this subdivision.
(2) Any patient who has been placed in the jurisdiction of the hospital under Chapter 50 of this title; provided, however, that a patient initially committed under Chapter 50 of this title shall be eligible if that patient has voluntarily applied for and has been accepted for hospitalization pursuant to § 5003 of this title.
(3) [Repealed.]
(4) Any patient who has been placed in the jurisdiction of the hospital under Chapter 57 of this title. 64 Del. Laws, c. 421,
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70 Del. Laws, c. 186,
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79 Del. Laws, c. 442,
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81 Del. Laws, c. 79,
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28 ;
§ 5175 Informed consent required.
(a) No patient may participate in any pharmaceutical research, investigation or experiment unless and until the patient has given the patient’s informed consent.
(b) Informed consent shall be in writing and each patient shall be given a copy of the patient’s signed consent form.
(c) Informed consent must be voluntary, that is, free of any coercion by anyone, including the hospital. Patients shall be advised both verbally and in writing that no threats, promises, special privileges or payments of any kind will be made for their participation in pharmaceutical research. Participating patients shall be informed both verbally and in writing that they may withdraw from the research at any time. No pressure of any kind shall be exerted upon any patient to continue research from which the patient wishes to withdraw.
(d) Any patient participating in double blind research shall be advised both verbally and in writing that the patient may receive a placebo for the duration of the research instead of medication. The term “placebo” shall be fully defined both verbally and in writing.
(e) Patients shall be encouraged to consult with family, friends and/or physicians prior to signing any consent form and entering the research program.
(f) No patient shall be approached to participate in pharmaceutical research if patient is incapable of understanding the nature and consequences of patient’s consent.
(g) All discussions leading to the agreement of a patient to participate in research, including the signing of the consent form, shall be witnessed by at least 1 health-care professional who will receive no financial benefit from the research. Such independent witness shall be qualified to determine whether the patient is competent to consent to participate and whether informed consent was freely given. The presence of the witness shall be noted on the consent form.
(h) The explanation of the proposed research to the patient shall include any explanation of the procedures to be followed and their purposes, a description of any attendant discomforts and risks reasonably to be expected, a description of any benefits reasonably to be expected, a disclosure of any appropriate alternative procedures that might be advantageous to the patient and an offer to answer any inquiries concerning the procedures. 64 Del. Laws, c. 421,
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70 Del. Laws, c. 186,
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§ 5176 Waiver of informed consent requirement.
Sections 5174(2) and 5175 of this title may be waived for a patient under the following conditions:
(1) An unsuccessful attempt has been made to secure the informed consent of the patient.
(2) No accepted pharmaceutical or other therapy exists for the type of illness affecting the patient or the patient has not responded to accepted pharmaceutical or other therapies.
(3) The performance of pharmaceutical research on the patient would be in the best interest of that patient.
(4) The proposed waiver has been approved in writing by the Institutional Review Board after thorough review of the patient’s clinical records.
(5) The proposed waiver has the prior written approval of the patient’s legal guardian or, if the patient has no guardian, patient’s next-of-kin.
(6) The proposed waiver has been approved by Superior Court upon affidavit filed by the medical director of the hospital. Such affidavit shall state that, with respect to the patient for whom the waiver is sought, all provisions of this section and this subchapter have been and will continue to be complied with. The Court may deny approval for failure to comply with any provision of this section or this subchapter or for any other reason it deems appropriate. Superior Court may by rule prescribe procedures for review of affidavits filed pursuant to this section. 64 Del. Laws, c. 421,
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3 ;
70 Del. Laws, c. 186,
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1 ;
Delaware General Assembly
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§ 5181 Definitions [For application of the repeal of this section, see 85 Del. Laws, c. 461, § 12] [Repealed].
77 Del. Laws, c. 387,
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1 ;
78 Del. Laws, c. 179,
§§
201-203 ;
repealed by 85 Del. Laws, c. 461, § 9, effective Aug. 31, 2026. ;
§ 5182 Community mental health patients’ rights [For application of the repeal of this section, see 85 Del. Laws, c. 461, § 12] [Repealed].
77 Del. Laws, c. 387,
§
1 ;
repealed by 85 Del. Laws, c. 461, § 9, effective Aug. 31, 2026. ;
§ 5183 Devolution of rights [For application of the repeal of this section, see 85 Del. Laws, c. 461, § 12] [Repealed].
77 Del. Laws, c. 387,
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1 ;
84 Del. Laws, c. 467,
§
8 ;
repealed by 85 Del. Laws, c. 461, § 9, effective Aug. 31, 2026. ;
§ 5184 Reporting require
The text continues in the official source.