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