ORS Chapter 436 - Oregon Statutes

Chapter 436 — Sterilization

 

2009 EDITION

 

 

STERILIZATION

 

PUBLICHEALTH AND SAFETY

 

436.205     Definitions

 

436.215     Legislativefinding

 

436.225     Obtaininginformed consent

 

436.235     Petitionto determine ability to give informed consent

 

436.245     Petitioncontent

 

436.255     Courthearing on petition; notice

 

436.265     Appointmentof counsel; payment of expenses

 

436.275     Admissibleevidence; subpoenas

 

436.285     Presenceof respondent; waiver; medication

 

436.295     Courtdetermination of ability to consent

 

436.305     Evidenceon best interests of respondent

 

436.315     Appointmentof appeal counsel; payment of expenses

 

436.325     Effecton surgical procedures

 

436.335     Reporton disposition; biennial review; report to Legislative Assembly

 

      436.010 [Amended by1967 c.441 §1; repealed by 1983 c.460 §2]

 

      436.020 [Amended by1955 c.556 §1; 1955 c.660 §29; 1967 c.441 §4; 1969 c.314 §43; 1971 c.650 §16;repealed by 1983 c.460 §2]

 

      436.025 [1967 c.441 §3(1); repealed by 1983 c.460 §2]

 

      436.030 [Amended by1955 c.651 §11; 1955 c.660 §30; 1961 c.173 §1; repealed by 1965 c.264 §12]

 

      436.035 [1967 c.441 §3(2); repealed by 1983 c.460 §2]

 

      436.040 [Repealed by1965 c.264 §1 (436.041 enacted in lieu of 436.040)]

 

      436.041 [1965 c.264 §2(enacted in lieu of 436.040); 1967 c.441 §5; 1971 c.734 §50; repealed by 1983c.460 §2]

 

      436.050 [Amended by1961 c.173 §2; 1965 c.264 §3; part renumbered 436.055; 1967 c.441 §6; repealedby 1983 c.460 §2]

 

      436.055 [Formerly partof 436.050; repealed by 1967 c.441 §7 (436.056 enacted in lieu of 436.055)]

 

      436.056 [1967 c.441 §8(enacted in lieu of 436.055); repealed by 1983 c.460 §2]

 

      436.060 [Repealed by1965 c.264 §4 (436.061 enacted in lieu of 436.060)]

 

      436.061 [1965 c.264 §5(enacted in lieu of 436.060); 1967 c.441 §9; repealed by 1983 c.460 §2]

 

      436.070 [Amended by1965 c.264 §6; 1967 c.441 §10; repealed by 1983 c.460 §2]

 

      436.080 [Repealed by1983 c.460 §2]

 

      436.090 [Amended by1965 c.264 §7; 1967 c.441 §11; 1973 c.823 §138; repealed by 1983 c.460 §2]

 

      436.100 [Amended by1965 c.264 §8; 1967 c.441 §12; 1969 c.391 §12; 1973 c.823 §139; 1973 c.829 §51;repealed by 1983 c.460 §2]

 

      436.110 [Amended by1965 c.264 §9; 1967 c.441 §13; 1971 c.734 §51; repealed by 1983 c.460 §2]

 

      436.115 [1971 c.734 §53;repealed by 1983 c.460 §2]

 

      436.120 [Amended by1965 c.264 §10; 1967 c.441 §14; repealed by 1971 c.734 §21]

 

      436.125 [1971 c.734 §54;repealed by 1983 c.460 §2]

 

      436.130 [Amended by1965 c.264 §11; repealed by 1971 c.734 §21]

 

      436.140 [Repealed by1983 c.460 §2]

 

      436.150 [Amended by1973 c.829 §52; repealed by 1983 c.460 §2]

 

      436.205Definitions.As used in this chapter unless the context requires otherwise:

      (1)“Best interest” means that:

      (a)The individual is physically capable of procreating;

      (b)The individual is likely to engage in sexual activity at the present or in thenear future under circumstances likely to result in pregnancy;

      (c)All less drastic alternative contraceptive methods, including supervision,education and training, have proved unworkable or inapplicable, or are medicallycontraindicated;

      (d)The proposed method of sterilization conforms with standard medical practice,is the least intrusive method available and appropriate, and can be carried outwithout unreasonable risk to the life and health of the individual; and

      (e)The nature and extent of the individual’s disability, as determined byempirical evidence and not solely on the basis of standardized tests, rendersthe individual permanently incapable of caring for and raising a child, evenwith reasonable assistance.

      (2)“Informed consent” means consent given by an individual 15 years of age orolder for sterilization that is:

      (a)Based upon a full understanding of the nature and consequences of sterilizationpursuant to information requirements set forth in ORS 436.225 (1);

      (b)Given by an individual competent to make such a decision; and

      (c)Wholly voluntary and free from coercion, express or implied.

      (3)“Respondent” is the individual for whom sterilization is sought and is thesubject of a petition pursuant to this chapter.

      (4)“Sterilization” means any medical procedure, treatment or operation for thepurpose of rendering an individual permanently incapable of procreating. [1983c.460 §3; 1991 c.67 §116]

 

      436.215Legislative finding.The Legislative Assembly finds and declares that sterilization procedures arehighly intrusive, generally irreversible and represent potentially permanentand highly significant consequences for individuals incapable of givinginformed consent. The Legislative Assembly recognizes that certain legalsafeguards are required to prevent indiscriminate and unnecessary sterilizationof such individuals, and to assure equal access to desired medical proceduresfor these Oregon citizens. [1983 c.460 §4]

 

      436.225Obtaining informed consent. (1) In obtaining informed consent for sterilizationa physician must offer to answer any questions the individual to be sterilizedmay have concerning the proposed procedure, and must provide orally all of thefollowing information or advice to the individual to be sterilized:

      (a)Advice that the individual is free to withhold or withdraw consent to theprocedure at any time before the sterilization without affecting the right tofuture care or treatment;

      (b)A description of available alternative methods of family planning and birthcontrol;

      (c)Advice that the sterilization procedure is considered to be irreversible;

      (d)A thorough explanation of the specific sterilization procedure to be performed;

      (e)A full description of the discomforts and risks that may accompany or followthe performing of the procedure, including an explanation of the type andpossible effects of any anesthetic to be used; and

      (f)A full description of the benefits or advantages that may be expected as aresult of the sterilization.

      (2)A natural parent, or a legal guardian or conservator of a minor child orprotected person appointed under ORS chapter 125, may not give substituteconsent for sterilization.

      (3)Whenever any physician has reason to believe an individual 15 years of age orolder is unable to give informed consent, no sterilization shall be performeduntil it is determined by a circuit court that the individual involved is ableto and has given informed consent. Whenever the court determines, under the provisionsof this chapter, that a person lacks the ability to give informed consent, thecourt shall permit sterilization only if the person is 18 years of age or olderand only upon showing that such operation, treatment or procedure is in thebest interest of the individual.

      (4)Informed consent may not be obtained while the individual to be sterilized is:

      (a)In labor or childbirth;

      (b)Seeking to obtain or obtaining an abortion; or

      (c)Under the influence of alcohol or other substances that affect the individual’sstate of awareness. [1983 c.460 §5; 1995 c.664 §98]

 

      436.235Petition to determine ability to give informed consent. A petition fora determination of a person’s ability to give informed consent to asterilization procedure may be filed by the person seeking sterilization, theattending physician of the person seeking sterilization, or by an interestedperson concerned with the respondent’s health and well-being. Such a petitionshall be filed in the circuit court in the county in which the respondentresides or has domicile. [1983 c.460 §6]

 

      436.245Petition content.The petition for determination of ability to give informed consent forsterilization shall be executed under oath and shall set forth:

      (1)The name, age and residence of the respondent.

      (2)The names and residences of any parents, spouse, legal guardian or conservatorof the respondent.

      (3)A statement of the facts describing the respondent’s alleged inability to giveinformed consent for sterilization.

      (4)A statement of facts indicating the likelihood or unlikelihood that therespondent will have the ability to make an informed decision aboutsterilization in the foreseeable future.

      (5)A statement of the reasons for which sterilization is sought.

      (6)The name, position and statement of interest of the person initiating thepetition or any person assisting the respondent with a self-initiated petition.[1983 c.460 §7]

 

      436.255Court hearing on petition; notice. (1) Upon such a petition fordetermination of ability to give informed consent, the court shall assign atime, not later than 30 days thereafter, and a place for hearing the petition.

      (2)The court may, at its discretion, hold a hearing on the petition at a placeother than the courtroom if it would facilitate the presence of the respondent.The court shall cause a copy of the petition and notice of the hearing to beserved on the respondent and the respondent’s parent, legal guardian orconservator, if any, at least 14 days prior to the hearing date. Notice is alsorequired to the following:

      (a)The spouse of the respondent, if any;

      (b)The sibling of the respondent if there are no living parents;

      (c)The system described in ORS 192.517 (1); and

      (d)Such other persons as the court may determine have an interest in therespondent.

      (3)If the parent or legal guardian of the respondent is not a resident of thisstate, notice may be served by registered mail or by certified mail with returnreceipt. If the residence of the respondent’s parent or legal guardian is unknown,an affidavit so stating shall be filed in lieu of service. [1983 c.460 §8; 1991c.249 §36; 2003 c.14 §247; 2005 c.498 §10]

 

      436.265Appointment of counsel; payment of expenses. (1) If the respondent requestscounsel but is determined to be financially eligible for appointed counsel atstate expense, the court shall appoint suitable counsel to represent therespondent at state expense.

      (2)If the respondent is not represented by counsel and appears to be unable torequest counsel, the court shall appoint suitable counsel to represent therespondent.

      (3)Counsel appointed by the court shall be paid compensation, as provided in ORS135.055. When the court appoints counsel and the respondent is withoutsufficient financial means to employ counsel, the compensation for counsel andreasonable expenses of investigation, preparation and presentation paid orincurred shall be determined and paid as provided in ORS 135.055. [1983 c.460 §9;2001 c.962 §75]

 

      436.275Admissible evidence; subpoenas. (1) At any hearing upon such petition,the court shall receive evidence concerning the respondent’s ability to giveinformed consent. Such evidence shall include, but shall not be limited to:

      (a)Testimony from the respondent regarding the respondent’s receipt and understandingof the information set forth in ORS 436.225 (1); and

      (b)Reports from an interdisciplinary team of at least three professionals who haveexperience working with disabilities similar to those affecting the respondent.The reports shall:

      (A)Contain specific information regarding the respondent’s ability to giveinformed consent;

      (B)Indicate the specific aspects, if any, of informed consent that the respondentlacks; and

      (C)Contain a statement by each professional explaining the reason for the professional’sopinion.

      (2)For purposes of subsection (1)(a) of this section, “testimony” means:

      (a)Sworn testimony given in person by the respondent to the court at any hearingon the respondent’s ability to give informed consent to sterilization; or

      (b)A sworn affidavit, if the respondent’s presence has been waived pursuant to ORS436.285.

      (3)The respondent or the respondent’s counsel shall have the right to presentevidence and to cross-examine witnesses who testify at the hearing.

      (4)Witnesses or other persons necessary for the conduct of the hearing may besubpoenaed. The person filing the petition or the respondent may havecompulsory attendance of witnesses on behalf of the requesting party in thesame manner as provided in ORS 136.567 to 136.603. The form of the subpoenashall be substantially as provided in ORS 136.575 (4) or (6), but shalldescribe the action as a “probate sterilization proceeding” and the appearanceas on behalf of “the petitioner,” or “the respondent.” [1983 c.460 §10; 2001c.255 §1]

 

      436.285Presence of respondent; waiver; medication. The respondent shall be presentat any hearing regarding respondent’s ability to give informed consent tosterilization, unless that right is waived by the person, personally or throughthe respondent’s attorney. The court shall approve of a waiver only if thepresence of the respondent grossly interrupts the proceeding or such presenceis medically contraindicated. The court shall inquire at the time of thehearing as to the types and effects of any medication being administered to ortaken by the respondent. [1983 c.460 §11; 1991 c.67 §117]

 

      436.295Court determination of ability to consent. (1) If the court does notdetermine by clear and convincing evidence that the respondent lacks theability to give informed consent for sterilization:

      (a)If the court determines that the respondent has the ability to give informedconsent to sterilization, the court shall issue an order so stating andpermitting the sterilization to be performed. Prior to the performance of thesterilization, the physician and hospital involved shall obtain the writteninformed consent of the person for sterilization.

      (b)If the respondent refuses to consent to sterilization, the court shall issue anorder so stating and forbidding sterilization of the respondent, unless therespondent later makes a different choice and only after a rehearing under thissection.

      (2)If the court determines by clear and convincing evidence that the respondentlacks the ability to give informed consent for sterilization, the court shallretain its jurisdiction and continue the hearing to determine whethersterilization is in the best interests of the respondent. [1983 c.460 §12; 2001c.255 §2]

 

      436.305Evidence on best interests of respondent. (1) In determining whethersterilization is in the best interest of the respondent, the court shall hearevidence including, but not limited to, medical, psychological and socialevidence as to whether such sterilization is in the best interest of theindividual as defined in ORS 436.205 (1).

      (2)The respondent or counsel shall have the right to present evidence and tocross-examine witnesses who testify at the hearing. Witnesses or other personsnecessary for the conduct of the hearing may be subpoenaed.

      (3)The court shall give its consent to sterilization only if it finds by clear andconvincing evidence that sterilization is in the best interest of therespondent. The court shall furnish findings to support its conclusion. [1983c.460 §13]

 

      436.315Appointment of appeal counsel; payment of expenses. If therespondent is determined to be financially eligible for appointed counsel atstate expense, the court, upon the request of the person or upon its ownmotion, shall appoint suitable counsel to represent the respondent on appeal.Counsel appointed by the court shall be paid compensation, as provided in ORS138.500. Compensation for counsel and costs and expenses necessary shall bedetermined and paid as provided in ORS 138.500. [1983 c.460 §16; 1985 c.502 §27;2001 c.962 §76]

 

      436.325Effect on surgical procedures. Nothing in this chapter limits surgicalprocedures which are medically indicated and which may result in sterilization.However, a hysterectomy shall not be performed solely for the purpose ofsterilization or for the purpose of hygiene and sanitary care of a female’smenses. [1983 c.460 §14]

 

      436.335Report on disposition; biennial review; report to Legislative Assembly. (1) Thedisposition of all cases under this chapter shall be reported to the StateCourt Administrator. The State Court Administrator shall forward any reportedinformation to the system described in ORS 192.517 (1).

      (2)The system described in ORS 192.517 (1) shall review biennially all casespertaining to sterilization under this chapter and shall report to theLegislative Assembly its assessment of the need for any changes in theprocedures or standards set forth in this chapter. [1983 c.460 §15; 1985 c.309 §1;1987 c.158 §83; 2003 c.14 §248; 2005 c.498 §11]

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