Utah 2023 Regular Session

Utah House Bill HB0544 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	H.B. 544
2	2	LEGISLATIVE GENERAL COUNSEL
3	3	6 Approved for Filing: D.M. Cheung 6
4	4	6 02-22-23 11:15 AM 6
5	5	H.B. 544
6	6	1 TOBACCO CESSATI ON AMENDMENTS
7	7	2 2023 GENERAL SESSION
8	8	3 STATE OF UTAH
9	9	4 Chief Sponsor: Thomas W. Peterson
10	10	5 Senate Sponsor: ____________
11	11	6
12	12	7LONG TITLE
13	13	8General Description:
14	14	9 This bill permits a minor to consent to and participate in tobacco and nicotine cessation
15	15	10services.
16	16	11Highlighted Provisions:
17	17	12 This bill:
18	18	13 <permits a minor to consent to and participate in tobacco and nicotine cessation
19	19	14services that are delivered or contracted for by the Department of Health and
20	20	15Human Services or a local health department.
21	21	16Money Appropriated in this Bill:
22	22	17 None
23	23	18Other Special Clauses:
24	24	19 None
25	25	20Utah Code Sections Affected:
26	26	21AMENDS:
27	27	22 78B-3-406, as last amended by Laws of Utah 2021, Chapter 262
28	28	23ENACTS:
29	29	24 26B-7-501, Utah Code Annotated 1953
30	30	25
31	31	26Be it enacted by the Legislature of the state of Utah:
32	32	27 Section 1. Section 26B-7-501 is enacted to read:
33	33	HB0544 H.B. 544 02-22-23 11:15 AM
34	34	- 2 -
35	35	28 26B-7-501. Tobacco and nicotine cessation services for minors.
36	36	29 (1) As used in this section:
37	37	30 (a) "Minor" means an individual who is younger than 18 years old.
38	38	31 (b) (i) "Tobacco and nicotine cessation services" means a program that is:
39	39	32 (A) specifically designed for minors who use tobacco products, electronic cigarette
40	40	33products, or nicotine products; and
41	41	34 (B) is operated by the department, a local health department, or a contractor that is
42	42	35approved by the department or a local health department.
43	43	36 (ii) "Tobacco and nicotine cessation services" includes:
44	44	37 (A) providing general information about the services offered by the department or a
45	45	38contractor that is approved by the department prior to the minor's registration and participation
46	46	39in the program; and
47	47	40 (B) providing the minor with access to guided cessation services which may include
48	48	41assessment, phone counseling, web-based resources, and coaching through technology-based
49	49	42communication tools.
50	50	43 (iii) "Tobacco and nicotine cessation services" does not include offering or distributing
51	51	44nicotine replacement therapy.
52	52	45 (2) A minor may consent to and participate in tobacco and nicotine cessation services.
53	53	46 (3) A minor is not required to inform or obtain consent from the minor's parent or legal
54	54	47guardian in order to participate in tobacco and nicotine cessation services.
55	55	48 Section 2. Section 78B-3-406 is amended to read:
56	56	49 78B-3-406. Failure to obtain informed consent -- Proof required of patient --
57	57	50Defenses -- Consent to health care.
58	58	51 (1) (a) When a person submits to health care rendered by a health care provider, it is
59	59	52presumed that actions taken by the health care provider are either expressly or impliedly
60	60	53authorized to be done.
61	61	54 (b) For a patient to recover damages from a health care provider in an action based
62	62	55upon the provider's failure to obtain informed consent, the patient must prove the following:
63	63	56 (i) that a provider-patient relationship existed between the patient and health care
64	64	57provider;
65	65	58 (ii) the health care provider rendered health care to the patient; 02-22-23 11:15 AM H.B. 544
66	66	- 3 -
67	67	59 (iii) the patient suffered personal injuries arising out of the health care rendered;
68	68	60 (iv) the health care rendered carried with it a substantial and significant risk of causing
69	69	61the patient serious harm;
70	70	62 (v) the patient was not informed of the substantial and significant risk;
71	71	63 (vi) a reasonable, prudent person in the patient's position would not have consented to
72	72	64the health care rendered after having been fully informed as to all facts relevant to the decision
73	73	65to give consent; and
74	74	66 (vii) the unauthorized part of the health care rendered was the proximate cause of
75	75	67personal injuries suffered by the patient.
76	76	68 (2) In determining what a reasonable, prudent person in the patient's position would do
77	77	69under the circumstances, the finder of fact shall use the viewpoint of the patient before health
78	78	70care was provided and before the occurrence of any personal injuries alleged to have arisen
79	79	71from said health care.
80	80	72 (3) It shall be a defense to any malpractice action against a health care provider based
81	81	73upon alleged failure to obtain informed consent if:
82	82	74 (a) the risk of the serious harm which the patient actually suffered was relatively
83	83	75minor;
84	84	76 (b) the risk of serious harm to the patient from the health care provider was commonly
85	85	77known to the public;
86	86	78 (c) the patient stated, prior to receiving the health care complained of, that he would
87	87	79accept the health care involved regardless of the risk; or that he did not want to be informed of
88	88	80the matters to which he would be entitled to be informed;
89	89	81 (d) the health care provider, after considering all of the attendant facts and
90	90	82circumstances, used reasonable discretion as to the manner and extent to which risks were
91	91	83disclosed, if the health care provider reasonably believed that additional disclosures could be
92	92	84expected to have a substantial and adverse effect on the patient's condition; or
93	93	85 (e) the patient or the patient's representative executed a written consent which sets forth
94	94	86the nature and purpose of the intended health care and which contains a declaration that the
95	95	87patient accepts the risk of substantial and serious harm, if any, in hopes of obtaining desired
96	96	88beneficial results of health care and which acknowledges that health care providers involved
97	97	89have explained the patient's condition and the proposed health care in a satisfactory manner and H.B. 544 02-22-23 11:15 AM
98	98	- 4 -
99	99	90that all questions asked about the health care and its attendant risks have been answered in a
100	100	91manner satisfactory to the patient or the patient's representative.
101	101	92 (4) The written consent shall be a defense to an action against a health care provider
102	102	93based upon failure to obtain informed consent unless the patient proves that the person giving
103	103	94the consent lacked capacity to consent or shows by clear and convincing evidence that the
104	104	95execution of the written consent was induced by the defendant's affirmative acts of fraudulent
105	105	96misrepresentation or fraudulent omission to state material facts.
106	106	97 (5) This act may not be construed to prevent any person 18 years old or over from
107	107	98refusing to consent to health care for the patient's own person upon personal or religious
108	108	99grounds.
109	109	100 (6) Except as provided in Section 76-7-304.5, the following persons are authorized and
110	110	101empowered to consent to any health care not prohibited by law:
111	111	102 (a) any parent, whether an adult or a minor, for the parent's minor child;
112	112	103 (b) any married person, for a spouse;
113	113	104 (c) any person temporarily standing in loco parentis, whether formally serving or not,
114	114	105for the minor under that person's care and any guardian for the guardian's ward;
115	115	106 (d) any person 18 years old or over for that person's parent who is unable by reason of
116	116	107age, physical or mental condition, to provide such consent;
117	117	108 (e) any patient 18 years old or over;
118	118	109 (f) any female regardless of age or marital status, when given in connection with her
119	119	110pregnancy or childbirth;
120	120	111 (g) in the absence of a parent, any adult for the adult's minor brother or sister;
121	121	112 (h) in the absence of a parent, any grandparent for the grandparent's minor grandchild;
122	122	113 (i) an emancipated minor as provided in Section 80-7-105;
123	123	114 (j) a minor who has contracted a lawful marriage; [and]
124	124	115 (k) an unaccompanied homeless minor, as that term is defined in the McKinney-Vento
125	125	116Homeless Assistance Act of 1987, Pub. L. 100-77, as amended, who is 15 years old or older[.];
126	126	117and
127	127	118 (l) a minor receiving tobacco and nicotine cessation services under Section 26B-7-501.
128	128	119 (7) A person who in good faith consents or authorizes health care treatment or
129	129	120procedures for another as provided by this act may not be subject to civil liability. 02-22-23 11:15 AM H.B. 544
130	130	- 5 -
131	131	121 (8) Notwithstanding any other provision of this section, if a health care provider fails to
132	132	122comply with the requirement in Section 58-1-509, the health care provider is presumed to have
133	133	123lacked informed consent with respect to the patient examination, as defined in Section
134	134	12458-1-509.