North Carolina § 35A-1245 - Procedure to permit the sterilization of a ward with a mental illness or intellectual disability in the case of medical necessity.

§ 35A-1245. Procedure to permit the sterilization of a ward with a mental illness or intellectual disability in the case of medical necessity.

A guardian of the person shall not consent to the sterilization of a ward with a mental illness or intellectual disability unless an order from the clerk has been obtained in accordance with this section. If a ward with a mental illness or intellectual disability needs to undergo a medical procedure that would result in sterilization, the ward's guardian shall petition the clerk for an order to permit the guardian to consent to the procedure. The petition shall contain all of the following: A sworn statement from a physician licensed in this State who has examined the ward that the proposed procedure is medically necessary and not for the sole purpose of sterilization or for the purpose of hygiene or convenience. The name and address of the physician who will perform the procedure. A sworn statement from a psychiatrist or psychologist licensed in this State who has examined the ward as to whether the ward with a mental illness or intellectual disability is able to comprehend the nature of the proposed procedure and its consequences and provide an informed consent to the procedure. If the ward is able to comprehend the nature of the proposed procedure and its consequences, the sworn consent of the ward to the procedure. A copy of the petition shall be served on the ward personally. If the ward is unable to comprehend the nature of the proposed procedure and its consequences and is unable to provide an informed consent, the clerk shall appoint an attorney to represent the ward in accordance with rules adopted by the Office of Indigent Defense Services. Should the ward or the ward's attorney request a hearing, a hearing shall be held. Otherwise, the clerk may enter an order without the appearance of witnesses. If a hearing is held, the guardian and the ward may present evidence. If the clerk finds all of the following, the clerk shall enter an order permitting the guardian to consent to the proposed procedure: The ward is capable of comprehending the procedure and its consequences and has consented to the procedure, or the ward is unable to comprehend the procedure and its consequences. The procedure is medically necessary and is not solely for the purpose of sterilization or for hygiene or convenience. The guardian or the ward, the ward's attorney, or any other interested party may appeal the clerk's order to the superior court in accordance with G.S. 1-301.2(e). History (2003-13, s. 1(a); 2005-250, s. 5; 2018-47, s. 1(e).) Cross References. - As to procedure when surgical operations on prison inmates are necessary, see G.S. 148-22.2 . Editor's Note. - Session Laws 2018-47, s. 15, provides: "This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability." Session Laws 2018-47, s. 16, made the amendment of this section by Session Laws 2018-47, s. 1(e ), effective October 1, 2018, and applicable to proceedings commenced on or after that date. Effect of Amendments. - Session Laws 2005-250, s. 5, effective August 4, 2005, inserted "in accordance with rules adopted by the Office of Indigent Defense Services" at the end of subsection (c). Session Laws 2018-47, s. 1(e), substituted "ward with a mental illness or intellectual disability" for "mentally ill or a mentally retarded ward" in the section heading and throughout the section; and in the introductory language of subsections (b) and (e) added "all of the." For effective date and applicability, see editor's note. Legal Periodicals. - For note, "Legislative Naivete in Involuntary Sterilization Laws," see 12 Wake Forest L. Rev. 1064 (1976). For comment on In re Sterilization of Moore, 289 N.C. 95 , 221 S.E.2d 307 (1976), see 8 N.C. Cent. L.J. 307 (1977). For article discussing sterilization of retarded persons, see 60 N.C.L. Rev. 943 (1982). For note, "In re Truesdell: North Carolina Adopts Two New and Conflicting Standards for Sterilization of Mentally Retarded Persons," see 64 N.C.L. Rev. 1196 (1986). For article, "Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy," see 5 Duke L.J. 806 (1986). For comment, "Have Your Cake and Eat it Too: Cognitive Neurology and Negligence Law in North Carolina," see 41 Campbell L. Rev. 181 (2019).