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H.B.
109
1
INFORMED
CONSENT FOR
2
ELECTROCONVULSIVE
TREATMENT AND
3
REPORTING
REQUIREMENTS
4
2003
GENERAL SESSION
5
STATE
OF UTAH
6
Sponsor:
Katherine M. Bryson
7 This
act amends the Local Mental Health Authority Act and the Substance Abuse and
8 Mental
Health Act. The act applies to physicians, hospitals, and mental health
facilities.
9 The
act prohibits the use of electroconvulsive treatment on children and pregnant
10 women.
The act requires informed consent for the use of electroconvulsive treatment on
11 adults.
The act establishes the elements of informed consent. The act prohibits anyone
12 other
than a physician from performing electroconvulsive treatment. The act requires
13 registration
of equipment with the Division of Substance Abuse and Mental Health. The
14 act
requires quarterly reporting of electroconvulsive treatment to the division and
the
15 Health
Data Committee in the Department of Health. The act requires the division to
16 enforce
the reporting requirements and annually report statistical data regarding the
use
17 of
electroconvulsive treatment to the governor and the Legislature. The act has an
18 effective
date of July 1, 2003.
19
This act affects sections of Utah Code Annotated 1953 as follows:
20
AMENDS:
21 17A-3-611, as renumbered and
amended by Chapter 186, Laws of Utah 1990
22 62A-15-704, as renumbered and
amended by Chapter 8, Laws of Utah 2002, Fifth
23
Special Session
24
ENACTS:
25 62A-15-1101, Utah Code Annotated
1953
26 62A-15-1102, Utah Code Annotated
1953
27 62A-15-1103, Utah Code Annotated
1953
28
62A-15-1104, Utah Code Annotated
1953
29 62A-15-1105, Utah Code Annotated
1953
30 62A-15-1106, Utah Code Annotated
1953
31 62A-15-1107, Utah Code Annotated
1953
32 62A-15-1108, Utah Code Annotated
1953
33 Be
it enacted by the Legislature of the state of Utah:
34
Section 1. Section 17A-3-611 is amended to read:
35
17A-3-611. Specified treatments prohibited --
Criminal penalties.
36
(1) It is a misdemeanor to:
37
(a) give [shock treatment,] a lobotomy[,] or surgery
to anyone without the written
38
consent of [his] the person or the person's next of kin or legal
guardian; or
39
(b) give electroconvulsive treatment to a
person without the written consent of the
40 person
in accordance with Sections 62A-15-1102 and 62A-15-1103 .
41
(2) Services provided under this part are
governed by [the] Title 58, Chapter 67, Utah
42
Medical Practice Act.
43
[(2)] (3) It is a felony to give
psychiatric treatment, nonvocational mental health
44
counseling, case-finding testing, psychoanalysis, drugs, [shock treatment]
electroconvulsive
45 treatment, lobotomy, or surgery
to any individual for the purpose of changing his concept of,
46
belief about, or faith in God.
47
Section 2. Section 62A-15-704 is amended to read:
48
62A-15-704. Invasive treatment
-- Due process proceedings.
49
(1) For purposes of this section, "invasive
treatment" means treatment in which a
50
constitutionally protected liberty or privacy interest may be affected,
including antipsychotic
51 medication,
electroshock therapy, and psychosurgery.
52
(2) The requirements of this section, and
Part 11, Electroconvulsive Treatment
53 Regulations, apply to all children
receiving services or treatment from a local mental health
54
authority, its designee, or its provider regardless of whether a local
mental health authority has
55
physical custody of the child or the child is receiving outpatient treatment
from the local
56
authority, its designee, or provider.
57
(3) (a) The division shall promulgate rules, in
accordance with Title 63, Chapter 46a,
58
Utah Administrative Rulemaking Act, establishing due process procedures
for children prior to
59
any invasive
treatment as follows:
60
(i) with regard to antipsychotic medications, if
either the parent or child disagrees with
61
that treatment, a due process proceeding shall be held in compliance
with the procedures
62
established under this Subsection (3); and
63
[(ii) with regard to psychosurgery and electroshock
therapy, a due process proceeding
64
shall be conducted pursuant to the procedures established under this Subsection
(3), regardless
65
of whether the parent or child agree or disagree with the treatment; and]
66
[(iii)] (ii) other possible
invasive treatments, except electroconvulsive treatment as
67 defined
in Section 62A-15-1101 , may be conducted unless either the parent or
child disagrees
68
with the treatment, in which case a due process proceeding shall be
conducted pursuant to the
69
procedures established under this Subsection (3).
70
(b) In promulgating the rules required by Subsection
(3)(a), the division shall consider
71
the advisability of utilizing an administrative law judge, court
proceedings, a neutral and
72
detached fact finder, and other methods of providing due process for the
purposes of this
73
section. The division shall also establish the criteria and basis for
determining when invasive
74
treatment should be administered.
75
Section 3. Section 62A-15-1101 is enacted to read:
76
Part
11. Electroconvulsive Treatment Regulations
77 62A-15-1101. Application.
78
(1) For purposes of this part,
"electroconvulsive treatment" includes prefrontal sonic
79 sound
treatment, or applied electrical voltage to the brain through electrodes which
results in a
80 gran
mal seizure or epileptic seizure and which is administered to treat mental
illness.
81
(2) This part applies to the use of
electroconvulsive treatment by any person who uses
82 or
administers electroconvulsive treatment, including:
83
(a) a physician licensed under Title 58,
Chapter 67, Utah Medical Practice Act, or Title
84 58,
Chapter 68, Utah Osteopathic Medical Practice Act;
85
(b) a hospital or facility licensed under
Section 26-21-9 ;
86
(c) a local mental health authority
subject to this title, its designee or providers; and
87
(d) the Utah State Hospital and other
mental health facilities.
88
Section 4. Section 62A-15-1102 is enacted to read:
89 62A-15-1102. Use of
electroconvulsive treatment.
90
Electroconvulsive treatment may not be
used on:
91
(1) a person who is younger than 18 years
of age;
92
(2) a person who is pregnant; or
93
(3) a person who is 18 years of age or
older, unless the person consents to the use of
94 the
treatment in accordance with Section 62A-15-1103 .
95
Section 5. Section 62A-15-1103 is enacted to read:
96 62A-15-1103. Consent to
treatment.
97
(1) The division shall adopt
administrative rules which establish a standard written
98 consent
form to be used when electroconvulsive treatment is considered. The rule shall
99 prescribe
the information that must be contained in the written consent for
electroconvulsive
100
treatment.
101
(2) The written consent form must clearly
state:
102
(a) the nature and purpose of the
procedure;
103
(b) the nature, degree, duration, and
probability of the side effects and significant risks
104
of the treatment commonly known by the medical profession,
especially noting the possible
105
degree and duration of memory loss, the possibility of permanent
irrevocable memory loss, and
106
the possibility of death;
107
(c) that there is a division of opinion as
to the efficacy of the procedure; and
108 (d) the
probable degree and duration of improvement or remission expected with or
109
without the procedure.
110
(3) Before a person receives each
electroconvulsive treatment, the physician
111 administering
the treatment shall ensure that:
112
(a) the person receives a written copy of
the consent form that is in the person's
113
primary language, if possible;
114
(b) the contents of the consent form are
explained to the person:
115
(i) orally, in simple, nontechnical terms
in the person's primary language, if possible; or
116
(ii) through the use of a means reasonably
calculated to communicate with a hearing
117
impaired or visually impaired person, if applicable;
118
(c) the person signs a copy of the consent
form stating that the person has read the
119
consent form and understands the information included in the
documents; and
120
(d) the signed copy of the consent form is
made a part of the person's clinical record.
121
(4) For a person 65 years of age or older,
before each treatment series begins, the
122
physician administering the procedure shall:
123
(a) ensure that two physicians have signed
an appropriate form that states the procedure
124
is medically necessary;
125
(b) make the form described by Subsection
(1) available to the person; and
126
(c) inform the person of any known current
medical condition that may increase the
127
possibility of injury or death as a result of the treatment.
128
(5) (a) A person who consents to the
administration of electroconvulsive treatment may
129
revoke the consent for any reason and at any time.
130
(b) Revocation of consent is effective
immediately.
131
Section 6. Section 62A-15-1104 is enacted to read:
132
62A-15-1104. Physician
requirement.
133 (1) Only a
physician licensed under Title 58, Chapter 67, Utah Medical Practice Act, or
134
Title 58, Chapter 68, Utah Osteopathic Medical Practice Act, may
administer electroconvulsive
135
treatment.
136 (2) A
physician may not delegate the act of administering the treatment. A
137
nonphysician who administers electroconvulsive treatment is
considered to be practicing
138
medicine in violation of Title 58, Chapter 67, Utah Medical
Practice Act.
139
Section 7. Section 62A-15-1105 is enacted to read:
140
62A-15-1105. Registration of
equipment.
141
(1) A physician may not administer
electroconvulsive treatment unless the equipment
142
used to administer the treatment is registered with the division.
143
(2) A hospital or facility where
electroconvulsive treatment is administered, or a
144
physician administering the treatment on an outpatient basis must
file an application for
145
registration under this section. The applicant must submit the
application to the division.
146
(3) The application must be accompanied by
a nonrefundable application fee. The
147
division shall set the fee in accordance with Section 63-38-3.2 in
a reasonable amount not to
148
exceed the cost to administer te registration, reporting, enforcement,
and monitoring required
149
by this part.
150
(4) The application must contain:
151
(a) the model, manufacturer, and age of
each piece of equipment used to administer the
152
treatment; and
153
(b) any other information required by the
division.
154
(5) The division by rule may prohibit the
registration and use of equipment of a type,
155
model, or age the division determines is dangerous.
156
Section 8. Section 62A-15-1106 is enacted to read:
157
62A-15-1106. Reports.
158
(1) A hospital or facility where
electroconvulsive treatment is administered or a
159
physician administering the treatment on an outpatient basis shall
submit to the division and to
160
the Health Data Committee created in Section 26-1-7 , quarterly
reports relating to the
161 administration
of the treatment in the hospital or facility or by the physician.
162
(2) A report must state for each quarter:
163
(a) the name of each physician who has
privileges in the facility to perform
164
electroconvulsive treatment and the number of electroconvulsive
treatments performed by each
165
physician;
166
(b) the total number of persons who
received the treatment;
167
(c) the age, sex, and race of each person
receiving the treatment;
168
(d) the diagnosis for each person
receiving the treatment;
169
(e) the source of the payment for the
treatment;
170
(f) the average number of
electroconvulsive treatments administered for each complete
171
series of treatments, but not including maintenance treatments;
172
(g) the average number of maintenance
electroconvulsive treatments administered per
173
month;
174
(h) the number of fractures, reported
memory losses, incidents of apnea, and cardiac
175
arrests without death;
176 (i)
autopsy findings, including investigation of petichial hemorrhages and other
small
177
blood vessel hemorrhages in the brain tissue, if death followed
within 14 days after the date of
178
the administration of the treatment; and
179
(j) any other information required by the
division.
180
(3) The information required by
Subsections (2)(h) and (2)(i) must include the name of
181
the physician who administered the treatment for each occurrence
listed in Subsections (2)(h)
182
and (2)(i).
183
Section 9. Section 62A-15-1107 is enacted to read:
184
62A-15-1107. Use of information
-- Report.
185
(1) The division shall use the information
received under Sections 62A-15-1105 and
186
62A-15-1106 to analyze and monitor the use of electroconvulsive
treatment administered to
187
treat mental illness.
188
(2) (a) The division shall file annually
with the governor and the Health and Human
189
Services Interim Committee of the Legislature a written report
summarizing the information
190
received under Sections 62A-15-1105 and 62A-15-1106 . The
information in the report shall be
191
summarized by facility and by physician.
192
(b) The division may not directly or
indirectly identify in a report issued under this
193
section a patient who received the treatment.
194
(c) The report prepared in accordance with
this Subsection (2) is a public document
195
under the provisions of Title 63, Chapter 2, Government Records
Access and Management Act.
196
Section 10. Section 62A-15-1108 is enacted to read:
197
62A-15-1108. Enforcement.
198
The division shall enforce the provisions
of this part and may, as the division considers
199
appropriate:
200
(1) issue a warning to any physician,
hospital, or facility who fails to obtain consent or
201
file a report required by this part; and
202
(2) report violations of this part to the
appropriate licensing authority for the physician,
203
hospital, or facility.
204
Section 11. Effective date.
205
This act takes effect on July 1, 2003.
Legislative
Review Note
as of 1-20-03 1:46 PM
This
legislation requires health care providers to disclose protected health
information about a
patient.
This type of disclosure is generally prohibited under the federal Standards for
Privacy
of
Individually Identifiable Health Information, 45 C.F.R. Parts 160 and 164.
However, the
federal
privacy standards have an exception to the general prohibition if the
disclosure is
required
by law. This bill appears to fall within the exception and would be a
disclosure of
protected
health information required by law.
Office
of Legislative Research and General Counsel