concurring.
This case demonstrates the problems that this court has concerning the proper interpretation of ORS 426.100. Appellant was furnished appointed counsel who adequately represented him during his civil commitment hearing. He made no request to represent himself or to be represented by *752private counsel to the trial court. However, he urges on appeal that his commitment should be set aside because the court failed, in its explanation of his right to representation by an attorney, to give him that additional explanation. In response to his arguments, the lead opinion holds ORS 426.100(l)(e) did not require the trial court to inform appellant about his right to retain private counsel or the right to represent himself, when the court had already appointed an attorney for appellant.
I am not persuaded by the lead opinion’s reasoning. ORS 426.100(l)(e) provides that the court shall advise the alleged mentally ill person of “[t]he person’s rights regarding representation by or appointment of counsel.” In context, the statute by the use of the word “or” can mean nothing other than that the person must be informed of his or her right to retain private counsel. Also, implicit in the requirements of ORS 426.100(l)(e) is the understanding that the person must be made aware of the right of self-representation. Subsection (3) supports the latter understanding. It provides:
“(3) When provided under subsection (2) of this section, an allegedly mentally ill person has the following rights relating to representation by or appointment of counsel:
“(a) The right to obtain suitable legal counsel possessing skills and experience commensurate with the nature of the allegations and complexity of the case during the proceedings.
“(b) If the person does not have funds with which to retain legal counsel, the court will appoint legal counsel to represent the person without cost. If a person is unable to afford legal counsel, payment of expenses and compensation relating to legal counsel shall be made as provided under ORS 426.250.
“(c) If the allegedly mentally ill person does not request legal counsel, the legal guardian, relative or friend may request the assistance of suitable legal counsel on behalf of the person.
“(d) If no request for legal counsel is made, the court shall appoint suitable legal counsel, unless counsel is expressly, knowingly and intelligently refused by the person.
“* * * :|: *
*753“(f) In all cases suitable legal counsel shall be present at the hearing and may be present at examination and may examine all witnesses offering testimony, and otherwise represent the person.”
It is apparent from a plain reading of these provisions that the legislature contemplated the situation in which the alleged mentally ill person elects self-representation. It has expressly provided in subsections (c), (d) and (f) what should occur in the event that the person elects to exercise that right. The court must first ascertain whether the waiver is made knowingly and intelligently. Even in that event, the court is authorized to appoint counsel at the request of a relative, and counsel must be present in the courtroom to represent the person as a “friend of the court.” The lead opinion is incorrect when it declares that the right to be advised of self-representation is not inherent in the statute, and, consequently, the court’s advice in this case fell short of the statutory requirements on both grounds urged by appellant.
The next question is whether the trial court’s failure requires reversal. ORS 426.100 is like any other statute, in that its interpretation depends on ascertaining the legislature’s intent. We should interpret it as it is written and not add to, or delete language from, its text. ORS 174.010. There has been a tendency by this court to read this particular statute’s requirements as if the failure to comply with them constitutes “structural” error. See, e.g., State v. Montgomery, 147 Or App 69, 934 P2d 640 (1997); State v. May, 131 Or App 570, 888 P2d 14 (1994). Although that term has a somewhat ambiguous meaning in the law, I understand it to refer to situations where the denial of a fundamental right is so pervasive that it necessarily infects the entire proceeding. An example would be the denial of the assistance of counsel in a criminal proceeding where there has been no effective waiver of that right. See, e.g., State v. Barone, 329 Or 210, 986 P2d 5 (1998).1 In those instances, the concept of “harmless error” *754can play no role because it is impossible to ascertain whether the proceeding was fundamentally fair. Nothing in the language of ORS 426.100 suggests that the legislature intended that a failure to comply with its requirements would constitute structural error. Consequently, this court has erred in the past to the extent that it has refused to consider arguments about waiver and harmless error, because those doctrines are applicable under this statute.
The dissent has one foot in the concept of harmless error and another in the concept of structural error. It would reason that the trial court’s error was not harmless because appellant could have obtained resources from a friend or another source to hire an attorney and because the issue, in the dissent’s view, is whether “appellant could have represented himself at all.” 172 Or App at 758. If the answer to the last query is in the affirmative, then the dissent would reverse the commitment order, regardless of whether the alleged mentally ill person was represented by competent counsel and received a fair hearing, as the dissent concedes occurred in this case.
The answer to the dissent’s first reason is that it is based on pure conjecture. There is not a speck of evidence in the record that appellant could have obtained from another person the resources with which to hire an attorney and, as the lead opinion points out, there is persuasive evidence that he could not afford an attorney on his own. In effect, the dissent’s second reason is a disguised effort to read into the statute the structural requirement that it will always be error if the alleged mentally ill person is not advised of the right of self-representation. The dissent would impose a requirement that is not in the statute and that would inevitably result in a reversal of every case in which the advice of self-representation was not given.
*755ORS 426.100(3)(d) provides that the court shall appoint counsel for an alleged mentally ill person “unless counsel is expressly, knowingly and intelligently refused by the person.” In contrast, the issue framed by the dissent’s construct is “whether appellant could have represented himself at all.” While the statute focuses on the mental state of the alleged mentally ill person in making the decision to reject the offer of assistance of counsel before the evidentiary hearing on the person’s mental status begins, the dissent focuses on the capacity in the hearing of the person for self-representation. Of course, the latter issue cannot be determined at the inception of the hearing. Additionally, the dissent reads into the statute an intent by the legislature to prohibit a harmless error result when no such intent exists in the language of the statute. The dissent cites no language in the statute or legislature history in support of its assertion; instead, it relies on its own expression of what it believes the legislature intended. I believe that it is evident from all of ORS 426.100 that the legislature was intent on providing a fair hearing to an alleged mentally ill person. A fair hearing includes the right to be represented by counsel. But there is nothing in the statute that even suggests that a reversal of a commitment judgment is required when the objective of a fair hearing is met, even though there were omissions in the giving of the required advice.
In this case, the trial court’s failure to advise appellant of his rights to retain counsel and to represent himself is harmless error. As the lead opinion points out, it is uncontroverted that appellant had no financial ability to retain private counsel. As to his right of self-representation, appellant points to no error on the merits, to any inadequacy of the attorney who was appointed or to anything he would have done differently, if he had represented himself. It necessarily follows that the statutory purpose of ORS 426.100 was fulfilled. For these reasons, I concur with the lead opinion’s affirmance of the judgment.
In Barone, the Supreme Court said:
“ ‘Structural error’ is a term from federal constitutional jurisprudence that refers to errors that require automatic reversal because, where such an error occurs, the trial court ‘cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded *754as fundamentally fair.’ Rose v. Clark, 478 US 570, 577-78, 106 S Ct 3101, 92 L Ed 2d 460 (1986) (citation omitted). Examples of such errors are the denial of the right to counsel at trial and the denial of the right to a trial conducted before an unbiased judge. Id. at 577, 106 S Ct 3101.
“This court has not adopted the doctrine of‘structural’ or ‘systemic’ error in analyzing questions of Oregon law. Even if we were to adopt it, however, the doctrine would not apply in this case. Structural error analysis applies to denials of fundamental constitutional rights in criminal prosecutions.’’Barone, 329 Or at 226.