GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION LAW 2003-13
HOUSE BILL 36
AN ACT TO REPEAL THE LAW THAT AUTHORIZES THE INVOLUNTARY STERILIZATION OF PERSONS WHO ARE MENTALLY ILL OR MENTALLY RETARDED, to permit the sterilization of MENTALLY ILL OR MENTALLY RETARDED WARDS only when there is a medical necessity, AND TO MAKE CONFORMING CHANGES TO THE GENERAL STATUTES.
The General Assembly of North Carolina enacts:
PART I. REPEALS THE LAW AUTHORIZING INVOLUNTARY STERILIZATIONS AND PERMITS THE STERILIZATION OF MENTALLY ILL OR MENTALLY RETARDED WARDS ONLY WHEN THERE IS A MEDICAL NECESSITY.
SECTION 1. Article 7 of Chapter 35 of the General Statutes is repealed.
SECTION 1.(a) Article 8 of Chapter 35A is amended by adding a new section to read:
"§ 35A-1245. Procedure to permit the sterilization of a mentally ill or a mentally retarded ward in the case of medical necessity.
(a) A guardian of the person shall not consent to the sterilization of a mentally ill or mentally retarded ward unless an order from the clerk has been obtained in accordance with this section.
(b) If a mentally ill or mentally retarded ward 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 the following:
(1) 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.
(2) The name and address of the physician who will perform the procedure.
(3) A sworn statement from a psychiatrist or psychologist licensed in this State who has examined the ward as to whether the mentally ill or mentally retarded ward is able to comprehend the nature of the proposed procedure and its consequences and provide an informed consent to the procedure.
(4) 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.
(c) 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.
(d) 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.
(e) If the clerk finds the following, the clerk shall enter an order permitting the guardian to consent to the proposed procedure:
(1) 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.
(2) The procedure is medically necessary and is not solely for the purpose of sterilization or for hygiene or convenience.
(f) 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)."
PART II. CONFORMING CHANGES TO THE GENERAL STATUTES.
SECTION 2. G.S. 1‑301.2(g) reads as rewritten:
"(g) Exception for
Incompetency and Foreclosure
Proceedings.Proceedings and Proceedings
to Permit Sterilization for Medical Necessity. –
(1) Proceedings for
adjudication of incompetency or restoration of competency under Chapter 35A of
Statutes Statutes, or proceedings to determine whether a
guardian may consent to the sterilization of a mentally ill or mentally
retarded ward under G.S. 35A-1245, shall not be transferred even if an
issue of fact, an equitable defense, or a request for equitable relief is
raised. Appeals from orders entered in these proceedings are governed by
Chapter 35A to the extent that the provisions of that Chapter conflict with
(2) Foreclosure proceedings under Article 2A of Chapter 45 of the General Statutes shall not be transferred even if an issue of fact, an equitable defense, or a request for equitable relief is raised. Equitable issues may be raised only as provided in G.S. 45‑21.34. Appeals from orders entered in these proceedings are governed by Article 2A of Chapter 45 to the extent that the provisions of that Article conflict with this section."
SECTION 2.(a) G.S. 7A‑451(a)(10) is repealed.
SECTION 3. G.S. 35A‑1203(e) reads as rewritten:
"(e) Where a guardian or trustee has been appointed for a ward under former Chapter 33 or former Chapter 35 of the General Statutes, the clerk, upon his own motion or the motion of that guardian or trustee or any other interested person, may designate that guardian or trustee or appoint another qualified person as guardian of the person, guardian of the estate, or general guardian of the ward under this Chapter; provided, the authority of a guardian or trustee properly appointed under former Chapter 33 or former Chapter 35 of the General Statutes to continue serving in that capacity is not dependent on such motion and designation."
SECTION 4. G.S. 35A‑1241(a) reads as rewritten:
"(a) To the extent that it is not inconsistent with the terms of any order of the clerk or any other court of competent jurisdiction, a guardian of the person has the following powers and duties:
(1) The guardian of the
person is entitled to custody of the person of
ward and shall make provision for histhe ward's care, comfort,
and maintenance, and shall, as appropriate to the ward's needs, arrange for his
the ward's training, education, employment, rehabilitation or habilitation.
The guardian of the person shall take reasonable care of the ward's clothing,
furniture, vehicles, and other personal effects that are with the ward.
(2) The guardian of the
person may establish the ward's place of abode within or without this State. In
arranging for a place of abode, the guardian of the person shall give
preference to places within this State over places not in this State if in‑State
and out‑of‑State places are substantially equivalent.
The guardian also shall give preference to places that are not treatment
facilities. If the only available and appropriate places of domicile are
treatment facilities, hethe guardian shall give preference to
community‑based treatment facilities, such as group homes or nursing
homes, over treatment facilities that are not community‑based.
(3) The guardian of the
person may give any consent or approval that may be necessary to enable the
ward to receive medical, legal, psychological, or other professional care,
counsel, treatment, or service.
He The guardian may
shall not, however, consent to the sterilization of a mentally ill or
mentally retarded ward. Such sterilization may be performed only after
compliance with Chapter 35, Article 7. ward unless the guardian obtains
an order from the clerk in accordance with G.S. 35A-1245. The guardian of
the person may give any other consent or approval on the ward's behalf that may
be required or in the ward's best interest. HeThe guardian may
petition the clerk for the clerk's concurrence in the consent or approval."
SECTION 5. G.S. 90‑21.13(e) reads as rewritten:
"(e) In the event of any
conflict between the provisions of this section and those of
Article 7 of
Chapter 35 and G.S. 35A-1245 and Articles 1A and 19 of Chapter 90,
the provisions of those Articles shall control and continue in full force and
SECTION 6. G.S. 90‑275 reads as rewritten:
90‑275. Article does not affect
eugenical or therapeutical
sterilization laws.duty of guardian to obtain order permitting guardian
to consent to sterilization of a mentally ill or mentally retarded ward.
Nothing in this Article shall be
deemed to affect the provisions of
Article 7 of Chapter 35 of the General
Statutes of North Carolina. G.S. 35A-1245."
SECTION 7. G.S. 108A‑14(a)(10) is repealed.
SECTION 8. G.S. 148‑22.2 reads as rewritten:
The medical staff of any penal
institution of the State of North Carolina is hereby authorized to perform or
cause to be performed by competent and skillful surgeons surgical operations
upon any inmate when such operation is necessary for the improvement of the
physical condition of the inmate. The decision to perform
operation shall be made by the chief medical officer of the institution, with
the approval of the superintendent of the institution, and with the advice of
the medical staff of said the institution. No suchoperation
shall be performed without the consent of the inmate; or, if the inmate beis
a minor, without the consent of a responsible member of histhe
inmate's family, a guardian, or one having legal custody of suchthe
minor; or, if the inmate be non compos mentis, then the consent of a
responsible member of histhe inmate's family or of a guardian mustshall
be obtained. Any surgical operations on inmates of State penal institutions
shall also be subject to the provisions of Article 1A of Chapter 90 of the
General Statutes and G.S. 90‑21.13 and G.S. 90‑21.14.
If the operation on the inmate is
determined by the chief medical officer to be an emergency situation in which
immediate action is necessary to preserve the life or health of the inmate, and
the inmate, if sui juris, is unconscious or otherwise incapacitated so as to be
incapable of giving consent or in the case of a minor or inmate non compos
mentis, the consent of a responsible member of
family, guardian, or one having legal custody of suchthe inmate
cannot be obtained within the time necessitated by the nature of the emergency
situation, then the decision to proceed with the operation shall be made by the
chief medical officer and the superintendent of the institution with the advice
of the medical staff of the institution.
In all cases falling under this
Article [section], the chief medical officer of the institution and the medical
staff of the institution shall keep a careful and complete record of the
measures taken to obtain the permission for
suchthe operation and
a complete medical record signed by the medical superintendent or director, the
surgeon performing the operation and all surgical consultants of the operation
performed. This Article [section] is not
to be considered as affecting the provisions of Article 7 of Chapter 35 of the
General Statutes dealing with eugenical sterilization."
SECTION 9. This act is effective when it becomes law and applies to all petitions for sterilization pending and orders authorizing sterilization that have not been executed as of the effective date of this act.
In the General Assembly read three times and ratified this the 7th day of April, 2003.
s/ Marc Basnight
President Pro Tempore of the Senate
s/ Richard T. Morgan
Speaker of the House of Representatives
s/ Michael F. Easley
Approved 10:35 a.m. this 17th day of April, 2003