May 16, 1975
Darrel Radack, Administrator
Human Services Center
Yankton, South Dakota 57078
OFFICIAL OPINION NO. 75-88
May surgery be performed upon adults who are incapable of giving consent if the center obtains consent from a parent or other relative?
Dear Mr. Radack:
You have requested an official opinion concerning the requirement of consent to surgery performed upon recipients of care at the Human Services Center. Specifically, your question may be stated as follows:
May surgery be performed upon adults who are incapable of giving consent if the center obtains consent from a parent or other relative?
Section 21 of the recently enacted Mental Commitment Act, House Bill 573, provides that a patient shall not be the subject of surgery without a court order unless one of three forms of consent is obtained. One of these three deals with consent by a legal guardian, and is not relevant to your question.
The other two consent provisions divide the patients into two classes-those over eighteen years of age and those under eighteen years of age. Consent may be obtained from the patient if he is over 18 and capable of consenting. Consent may be obtained from a parent if the patient is under 18.
There is no provision for consent by any other party, such as a relative, if the patient is over 18 and not competent to consent. Parents may consent if the patient is under 18, and the inclusion of this provision indicates that the Legislature considered the matter of consent by a relative and limited it to patients under 18.
Although past practice may have been to perform surgery on the basis of consent by relatives, such a practice cannot be considered to be provided for by the new statute. The specific enumeration of the types of consent allowed precludes any interpretation that would allow a type of consent not listed.
Although substantial administrative difficulty may be created by the requirement that court orders be secured where the patients are adults incapable of consenting, the interpretation of the statute must be confined to the intention expressed in the language used. Boehrs v. Dewey County et al., 74 S.D. 75, 48 N.W. 2d 831 (1951). Where there is no ambiguity in the statute, additional provisions may not be read into it. Ex parte Brown, 21 S.D. 515, 114 N.W. 303 (1907).
Because the clear language of the statute does not allow surgery based upon the consent of a relative of an adult patient, your question must be answered in the negative.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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