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Re: Sterilization

62A-6-101.   Definitions.

As used in this chapter:
(1)  "Informed consent" means consent that is voluntary and based on an understanding by the person to be sterilized of the nature and consequences of sterilization, the reasonably foreseeable risks and benefits of sterilization, and the available alternative methods of contraception.
(2)  "Institutionalized" means residing in the Utah State Developmental Center, the Utah State Hospital, a residential facility for persons with a disability as defined in Sections 10-9a-103 and 17-27a-103, a group home for disabled persons, a nursing home, or a foster care home or facility.
(3)  "Sterilization" means any medical procedure, treatment, or operation rendering an individual permanently incapable of procreation.

Re: Mental Health Treatment

62A-15-1002.   Declaration for mental health treatment.

(1)  An adult who is not incapable may make a declaration of preferences or instructions regarding his mental health treatment.  The declaration may include, but is not limited to, consent to or refusal of specified mental health treatment.
(2)  A declaration for mental health treatment shall designate a capable adult to act as attorney-in-fact to make decisions about mental health treatment for the declarant.  An alternative attorney-in-fact may also be designated to act as attorney-in-fact if the original designee is unable or unwilling to act at any time.  An attorney-in-fact who has accepted the appointment in writing may make decisions about mental health treatment on behalf of the declarant only when the declarant is incapable.  The decisions shall be consistent with any instructions or desires the declarant has expressed in the declaration.
(3)  A declaration is effective only if it is signed by the declarant and two capable adult witnesses.  The witnesses shall attest that the declarant is known to them, signed the declaration in their presence, appears to be of sound mind and is not under duress, fraud, or undue influence.  Persons specified in Subsection 62A-15-1003(6) may not act as witnesses.
(4)  A declaration becomes operative when it is delivered to the declarant's physician or other mental health treatment provider and remains valid until it expires or is revoked by the declarant.  The physician or provider is authorized to act in accordance with an operative declaration when the declarant has been found to be incapable.  The physician or provider shall continue to obtain the declarant's informed consent to all mental health treatment decisions if the declarant is capable of providing informed consent or refusal.
(5) (a)  An attorney-in-fact does not have authority to make mental health treatment decisions unless the declarant is incapable.
(b)  An attorney-in-fact is not, solely as a result of acting in that capacity, personally liable for the cost of treatment provided to the declarant.
(c)  Except to the extent that a right is limited by a declaration or by any federal law, an attorney-in-fact has the same right as the declarant to receive information regarding the proposed mental health treatment and to receive, review, and consent to disclosure of medical records relating to that treatment.  This right of access does not waive any evidentiary privilege.
(d)  In exercising authority under the declaration, the attorney-in-fact shall act consistently with the instructions and desires of the declarant, as expressed in the declaration.  If the declarant's desires are unknown, the attorney-in-fact shall act in what he, in good faith, believes to be the best interest of the declarant.
(e)  An attorney-in-fact is not subject to criminal prosecution, civil liability, or professional disciplinary action for any action taken in good faith pursuant to a declaration for mental health treatment.
(6) (a)  A declaration for mental health treatment remains effective for a period of three years or until revoked by the declarant.  If a declaration for mental health treatment has been invoked and is in effect at the expiration of three years after its execution, the declaration remains effective until the declarant is no longer incapable.
(b)  The authority of a named attorney-in-fact and any alternative attorney-in-fact continues in effect as long as the declaration appointing the attorney-in-fact is in effect or until the attorney-in-fact has withdrawn.
(7)  A person may not be required to execute or to refrain from executing a declaration as a criterion for insurance, as a condition for receiving mental or physical health services, or as a condition of discharge from a facility.

62A-15-1004.   Declaration for mental health treatment -- Form.

A declaration for mental health treatment shall be in substantially the following form: DECLARATION FOR MENTAL HEALTH TREATMENT

I, ________________________________, being an adult of sound mind, willfully and voluntarily make this declaration for mental health treatment, to be followed if it is determined by a court or by two physicians that my ability to receive and evaluate information effectively or to communicate my decisions is impaired to such an extent that I lack the capacity to refuse or consent to mental health treatment.  "Mental health treatment" means convulsive treatment, treatment with psychoactive medication, and admission to and retention in a mental health facility for a period up to 17 days.

I understand that I may become incapable of giving or withholding informed consent for mental health treatment due to the symptoms of a diagnosed mental disorder.  These symptoms may include:

PSYCHOACTIVE MEDICATIONS

If I become incapable of giving or withholding informed consent for mental health treatment, my wishes regarding psychoactive medications are as follows:
__________ I consent to the administration of the following medications:
___________________________________________________________________________
___ in the dosages:
__________ considered appropriate by my attending physician.
__________ approved by ________________________________________
__________ as I hereby direct: ____________________________________
__________ I do not consent to the administration of the following medications:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

CONVULSIVE TREATMENT

If I become incapable of giving or withholding informed consent for mental health treatment, my wishes regarding convulsive treatment are as follows:
__________ I consent to the administration of convulsive treatment of the following type:______________________________________________, the number of treatments to be:__________ determined by my attending physician.
__________ approved by _______________________________________
__________ as follows: ________________________________________
__________ I do not consent to the administration of convulsive treatment.
My reasons for consenting to or refusing convulsive treatment are as follows;
___________________________________________________________________________
___________________________________________________________________________
_________________________________________________________________________

ADMISSION TO AND RETENTION IN A MENTAL HEALTH FACILITY

If I become incapable of giving or withholding informed consent for mental health treatment, my wishes regarding admission to and retention in a mental health facility are as follows:
__________ I consent to being admitted to the following mental health facilities:
___________________________________________________________________________
I may be retained in the facility for a period of time:
__________ determined by my attending physician.
__________ approved by _______________________________________
__________ no longer than _____________________________________
This directive cannot, by law, provide consent to retain me in a facility for more than 17 days.

ADDITIONAL REFERENCES OR INSTRUCTIONS

___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________

ATTORNEY-IN-FACT

I hereby appoint:
NAME ________________________________________________
ADDRESS _____________________________________________
TELEPHONE # _________________________________________
to act as my attorney-in-fact to make decisions regarding my mental health treatment if I  become incapable of giving or withholding informed consent for that treatment. If the person named above refuses or is unable to act on my behalf, or if I revoke that person's authority to act as my attorney-in-fact, I authorize the following person to act as my alternative attorney-in-fact:
NAME ________________________________________________
ADDRESS _____________________________________________
TELEPHONE #  _________________________________________
My attorney-in-fact is authorized to make decisions which are consistent with the wishes I have expressed in this declaration.  If my wishes are not expressed, my attorney-in-fact is to act in good faith according to what he or she believes to be in my best interest.
_________________________________________
(Signature of Declarant/Date)
AFFIRMATION OF WITNESSES

We affirm that the declarant is personally known to us, that the declarant signed or acknowledged the declarant's signature on this declaration for mental health treatment in our presence, that the declarant appears to be of sound mind and does not appear to be under duress, fraud, or undue influence.  Neither of us is the person appointed as attorney-in-fact by this document, the attending physician, an employee of the attending physician, an employee of the Division of Substance Abuse and Mental Health within the Department of Human Services, an employee of a local mental health authority, or an employee of any organization that contracts with a local mental health authority.

Witnessed By:
___________________________________________________________________________
(Signature of Witness/Date)                    (Printed Name of Witness)
____________________________________________________________________________
(Signature of Witness/Date)                    (Printed Name of Witness)

ACCEPTANCE OF APPOINTMENT AS ATTORNEY-IN-FACT

I accept this appointment and agree to serve as attorney-in-fact to make decisions about mental health treatment for the declarant.  I understand that I have a duty to act consistently with the desires of the declarant as expressed in the declaration.  I understand that this document gives me authority to make decisions about mental health treatment only while the declarant is incapable as determined by a court or two physicians.  I understand that the declarant may revoke this appointment, or the declaration, in whole or in part, at any time and in any manner, when the declarant is not incapable.
___________________________________________________________________________
(Signature of Attorney-in-fact/Date)               (Printed name)
____________________________________________________________________________
(Signature of Alternate Attorney-in-fact/Date)     (Printed name)
NOTICE TO PERSON MAKING A

DECLARATION FOR MENTAL HEALTH TREATMENT

This is an important legal document.  It is a declaration that allows, or disallows, mental health treatment.  Before signing this document, you should know that:
(1)  this document allows you to make decisions in advance about three types of mental health treatment: psychoactive medication, convulsive therapy, and short-term (up to 17 days) admission to a mental health facility;
(2)  the instructions that you include in this declaration will be followed only if a court or two physicians believe that you are incapable of otherwise making treatment decisions. Otherwise, you will be considered capable to give or withhold consent for treatment;
(3)  you may also appoint a person as your attorney-in-fact to make these treatment decisions for you if you become incapable.  The person you appoint has a duty to act consistently with your desires as stated in this document or, if not stated, to make decisions in accordance with what that person believes, in good faith, to be in your best interest.  For the appointment to be effective, the person you appoint must accept the appointment in writing.  The person also has the right to withdraw from acting as your attorney-in-fact at any time;
(4)  this document will continue in effect for a period of three years unless you become incapable of participating in mental health treatment decisions.  If this occurs, the directive will continue in effect until you are no longer incapable;
(5)  you have the right to revoke this document in whole or in part, or the appointment of an attorney-in-fact, at any time you have not been determined to be incapable.  YOU MAY NOT REVOKE THE DECLARATION OR APPOINTMENT WHEN YOU ARE CONSIDERED INCAPABLE  BY A COURT OR TWO PHYSICIANS.  A revocation is effective when it is communicated to your attending physician or other provider; and
(6)  if there is anything in this document that you do not understand, you should ask an attorney to explain it to you.  This declaration is not valid unless it is signed by two qualified witnesses who are personally known to you and who are present when you sign or acknowledge your signature.

Renumbered and Amended by Chapter 8, 2002 Special Session 5

Re: Abuse and neglect

76-5-111.   Abuse, neglect, or exploitation of a vulnerable adult -- Penalties.

(1)  As used in this section:
(a)  "Abandonment” means a knowing or intentional action or inaction, including desertion, by a person or entity acting as a caretaker for a vulnerable adult that leaves the vulnerable adult without the means or ability to obtain necessary food, clothing, shelter, or medical or other health care.
(b)  "Abuse" means:
(i)  attempting to cause harm, intentionally or knowingly causing harm, or intentionally or knowingly placing another in fear of imminent harm;
(ii)  causing physical injury by knowing or intentional acts or omissions;
(iii)  unreasonable or inappropriate use of physical restraint, medication, or isolation that causes or is likely to cause harm to a vulnerable adult that is in conflict with a physician's orders or used as an unauthorized substitute for treatment, unless that conduct furthers the health and safety of the adult; or
(iv)  deprivation of life-sustaining treatment, except:
(A)  as provided in Title 75, Chapter 2, Part 11, Personal Choice and Living Will Act; or
(B)  when informed consent, as defined in this section, has been obtained.
(c)  "Business relationship" means a relationship between two or more individuals or entities where there exists an oral or written agreement for the exchange of goods or services.
(d)  "Caretaker" means any person, entity, corporation, or public institution that assumes the responsibility to provide a vulnerable adult with care, food, shelter, clothing, supervision, medical or other health care, or other necessities.  "Caretaker" includes a relative by blood or marriage, a household member, a person who is employed or who provides volunteer work, or a person who contracts or is under court order to provide care.
(e)  "Deception" means:
(i)  a misrepresentation or concealment:
(A)  of a material fact relating to services rendered, disposition of property, or use of property intended to benefit a vulnerable adult;
(B)  of the terms of a contract or agreement entered into with a vulnerable adult; or
(C)  relating to the existing or preexisting condition of any property involved in a contract or agreement entered into with a vulnerable adult; or
(ii)  the use or employment of any misrepresentation, false pretense, or false promise in order to induce, encourage, or solicit a vulnerable adult to enter into a contract or agreement.
(f)  "Elder adult" means a person 65 years of age or older.
(g)  "Endeavor" means to attempt or try.
(h)  "Exploitation" means the offense described in Subsection (4).
(i)  "Harm" means pain, mental anguish, emotional distress, hurt, physical or psychological damage, physical injury, suffering, or distress inflicted knowingly or intentionally.
(j)  "Informed consent" means:
(i)  a written expression by the person or authorized by the person, stating that the person fully understands the potential risks and benefits of the withdrawal of food, water, medication, medical services, shelter, cooling, heating, or other services necessary to maintain minimum physical or mental health, and that the person desires that the services be withdrawn.  A written expression is valid only if the person is of sound mind when the consent is given, and the consent is witnessed by at least two individuals who do not benefit from the withdrawal of services; or
(ii)  consent to withdraw food, water, medication, medical services, shelter, cooling, heating, or other services necessary to maintain minimum physical or mental health, as permitted by court order.
(k)  "Intimidation" means communication conveyed through verbal or nonverbal conduct which threatens deprivation of money, food, clothing, medicine, shelter, social interaction, supervision, health care, or companionship, or which threatens isolation or harm.
(l) (i)  "Isolation” means knowingly or intentionally preventing a vulnerable adult from having contact with another person by:
(A)  preventing the vulnerable adult from receiving visitors, mail, or telephone calls, contrary to the express wishes of the vulnerable adult, including communicating to a visitor that the vulnerable adult is not present or does not want to meet with or talk to the visitor, knowing that communication to be false;
(B)  physically restraining the vulnerable adult in order to prevent the vulnerable adult from meeting with a visitor; or
(C)  making false or misleading statements to the vulnerable adult in order to induce the vulnerable adult to refuse to receive communication from visitors or other family members.
(ii)  The term "isolation" does not include an act intended to protect the physical or mental welfare of the vulnerable adult or an act performed pursuant to the treatment plan or instructions of a physician or other professional advisor of the vulnerable adult.
(m)  "Lacks capacity to consent" means an impairment by reason of mental illness, developmental disability, organic brain disorder, physical illness or disability, chronic use of drugs, chronic intoxication, short-term memory loss, or other cause to the extent that a vulnerable adult lacks sufficient understanding of the nature or consequences of decisions concerning the adult's person or property.
(n)  "Neglect" means:
(i) failure of a caretaker to provide nutrition, clothing, shelter, supervision, personal care, or dental or other health care, or failure to provide protection from health and safety hazards or maltreatment;
(ii)  failure of a caretaker to provide care to a vulnerable adult in a timely manner and with the degree of care that a reasonable person in a like position would exercise;
(iii)  a pattern of conduct by a caretaker, without the vulnerable adult's informed consent, resulting in deprivation of food, water, medication, health care, shelter, cooling, heating, or other services necessary to maintain the vulnerable adult's well being;
(iv)  intentional failure by a caretaker to carry out a prescribed treatment plan that results or could result in physical injury or physical harm; or
(v)  abandonment by a caretaker.
(o)  "Physical injury"  includes damage to any bodily tissue caused by nontherapeutic conduct, to the extent that the tissue must undergo a healing process in order to be restored to a sound and healthy condition, or damage to any bodily tissue to the extent that the tissue cannot be restored to a sound and healthy condition.  "Physical injury" includes skin bruising, a dislocation, physical pain, illness, impairment of physical function, a pressure sore, bleeding, malnutrition, dehydration, a burn, a bone fracture, a subdural hematoma, soft tissue swelling, injury to any internal organ, or any other physical condition that imperils the health or welfare of the vulnerable adult and is not a serious physical injury as defined in this section.
(p)  "Position of trust and confidence" means the position of a person who:
(i)  is a parent, spouse, adult child, or other relative by blood or marriage of a vulnerable adult;
(ii)  is a joint tenant or tenant in common with a vulnerable adult;
(iii)  has a legal or fiduciary relationship with a vulnerable adult, including a court-appointed or voluntary guardian, trustee, attorney, or conservator; or
(iv)  is a caretaker of a vulnerable adult.
(q)  "Serious physical injury" means any physical injury or set of physical injuries that:
(i)  seriously impairs a vulnerable adult's health;
(ii)  was caused by use of a dangerous weapon as defined in Section 76-1-601;
(iii)  involves physical torture or causes serious emotional harm to a vulnerable adult; or
(iv)  creates a reasonable risk of death.
(r)  "Sexual exploitation" means the production, distribution, possession, or possession with the intent to distribute material or a live performance depicting a nude or partially nude vulnerable adult who lacks the capacity to consent, for the purpose of sexual arousal of any person.
(s)  "Undue influence” occurs when a person uses the person's role, relationship, or power to exploit, or knowingly assist or cause another to exploit, the trust, dependency, or fear of a vulnerable adult, or uses the person's role, relationship, or power to gain control deceptively over the decision making of the vulnerable adult.
(t)  "Vulnerable adult” means an elder adult, or an adult 18 years of age or older who has a mental or physical impairment which substantially affects that person's ability to:
(i)  provide personal protection;
(ii)  provide necessities such as food, shelter, clothing, or medical or other health care;
(iii) obtain services necessary for health, safety, or welfare;
(iv) carry out the activities of daily living;
(v)  manage the adult's own resources; or
(vi) comprehend the nature and consequences of remaining in a situation of abuse, neglect, or exploitation.
(2)  Under any circumstances likely to produce death or serious physical injury, any person, including a caretaker, who causes a vulnerable adult to suffer serious physical injury or, having the care or custody of a vulnerable adult, causes or permits that adult's person or health to be injured, or causes or permits a vulnerable adult to be placed in a situation where the adult's person or health is endangered, is guilty of the offense of aggravated abuse of a vulnerable adult as follows:
(a)  if done intentionally or knowingly, the offense is a second degree felony;
(b)  if done recklessly, the offense is third degree felony; and
(c)  if done with criminal negligence, the offense is a class A misdemeanor.
(3)  Under circumstances other than those likely to produce death or serious physical injury any person, including a caretaker, who causes a vulnerable adult to suffer harm, abuse, or neglect; or, having the care or custody of a vulnerable adult, causes or permits that adult's person or health to be injured, abused, or neglected, or causes or permits a vulnerable adult to be placed in a situation where the adult's person or health is endangered, is guilty of the offense of abuse of a vulnerable adult as follows:
(a)  if done intentionally or knowingly, the offense is a class A misdemeanor;
(b)  if done recklessly, the offense is a class B misdemeanor; and
(c)  if done with criminal negligence, the offense is a class C misdemeanor.
(4) (a)  A person commits the offense of exploitation of a vulnerable adult when the person:
(i)  is in a position of trust and confidence, or has a business relationship, with the vulnerable adult or has undue influence over the vulnerable adult and knowingly, by deception or intimidation, obtains or uses, or endeavors to obtain or use, the vulnerable adult's funds, credit, assets, or other property with the intent to temporarily or permanently deprive the vulnerable adult of the use, benefit, or possession of the adult's property, for the benefit of someone other than the vulnerable adult;
(ii)  knows or should know that the vulnerable adult lacks the capacity to consent, and obtains or uses, or endeavors to obtain or use, or assists another in obtaining or using or endeavoring to obtain or use, the vulnerable adult's funds, assets, or property with the intent to temporarily or permanently deprive the vulnerable adult of the use, benefit, or possession of his property for the benefit of someone other than the vulnerable adult;
(iii)  unjustly or improperly uses or manages the resources of a vulnerable adult for the profit or advantage of someone other than the vulnerable adult;
(iv)  unjustly or improperly uses a vulnerable adult's power of attorney or guardianship for the profit or advantage of someone other than the vulnerable adult;
(v)  involves a vulnerable adult who lacks the capacity to consent in the facilitation or
furtherance of any criminal activity; or
(vi)  commits sexual exploitation of a vulnerable adult.
(b)  A person is guilty of the offense of exploitation of a vulnerable adult as follows:
(i)  if done intentionally or knowingly and the aggregate value of the resources used or the profit made is or exceeds $5,000, the offense is a second degree felony;
(ii)  if done intentionally or knowingly and the aggregate value of the resources used or the profit made is less than $5,000 or cannot be determined, the offense is a third degree felony;
(iii)  if done recklessly, the offense is a class A misdemeanor; or
(iv)  if done with criminal negligence, the offense is a class B misdemeanor.
(5)  It does not constitute a defense to a prosecution for any violation of this section that the accused did not know the age of the victim.
(6)  An adult is not considered abused, neglected, or a vulnerable adult for the reason that the adult has chosen to rely solely upon religious, nonmedical forms of healing in lieu of medical care.

Amended by Chapter 108, 2002 General Session

Re: Abortion

76-7-305.   Informed consent requirements for abortion -- 24-hour wait mandatory -- Emergency exceptions.

(1)  No abortion may be performed unless a voluntary and informed written consent, consistent with Section 8.08 of the American Medical Association's Code of Medical Ethics, Current Opinions, is first obtained by the attending physician from the woman upon whom the abortion is to be performed.  Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if:
(a)  at least 24 hours prior to the abortion, the physician who is to perform the abortion, the referring physician, a registered nurse, nurse practitioner, advanced practice registered nurse, certified nurse midwife, or physician's assistant shall, in a face-to-face consultation, orally inform the woman of:
(i)  the nature of the proposed abortion procedure or treatment, specifically how that procedure will affect the fetus, and the risks and alternatives to an abortion procedure or treatment that any person would consider material to the decision of whether or not to undergo an abortion.  The alternatives required to be provided under this subsection shall include a description of adoption services, including private and agency adoption methods, and a statement that it is legal for adoptive parents to financially assist in pregnancy and birth expenses;
(ii)  the probable gestational age and a description of the development of the unborn child at the time the abortion would be performed; and
(iii)  the medical risks associated with carrying her child to term;
(b)  at least 24 hours prior to the abortion the physician who is to perform the abortion, the referring physician, or, as specifically delegated by either of those physicians, a registered nurse, licensed practical nurse, certified nurse-midwife, advanced practice registered nurse, clinical laboratory technologist, psychologist, marriage and family therapist, clinical social worker, or certified social worker has orally, in a face-to-face consultation, informed the pregnant woman that:
(i)  the Department of Health, in accordance with Section 76-7-305.5, publishes printed
material and an informational video that:
(A) provides medically accurate information regarding all abortion procedures that may be used;
(B)  describes the gestational stages of an unborn child; and
(C)  includes information regarding public and private services and agencies available to assist her through pregnancy, at childbirth, and while the child is dependent, including private and agency adoption alternatives; and
(ii)  the printed material and a viewing of or a copy of the informational video shall be provided to her free of charge;
(iii)  medical assistance benefits may be available for prenatal care, childbirth, and neonatal care, and that more detailed information on the availability of that assistance is contained in the printed materials and the informational video published by the Department of Health;
(iv)  the father of the unborn child is legally required to assist in the support of her child, even in instances where he has offered to pay for the abortion, and that the Office of Recovery Services within the Department of Human Services will assist her in collecting child support.  In the case of rape, this information may be omitted; and
(v)  she has the right to view an ultrasound of the unborn child, at no expense to her, upon her request;
(c)  the information required to be provided to the pregnant woman under Subsection (a) is also provided by the physician who is to perform the abortion, in a face-to-face consultation, prior to performance of the abortion, unless the attending or referring physician was the individual providing the information under Subsection (a);
(d)  a copy of the printed materials published by the Department of Health has been provided to the pregnant woman;
(e)  the informational video, published by the Department of Health, has been provided to the pregnant woman in accordance with Subsection (2); and
(f)  the pregnant woman has certified in writing, prior to the abortion, that the information required to be provided under Subsections (a), (b), (c), (d), and (e) was provided, in accordance with the requirements of those subsections.
(2)  When the informational video is provided to a pregnant woman, the person providing the information shall first request that the woman view the video at that time or at another specifically designated time and location.  If the woman chooses not to do so, a copy of the video shall be provided to her.
(3)  When a serious medical emergency compels the performance of an abortion, the physician shall inform the woman prior to the abortion, if possible, of the medical indications supporting his judgment that an abortion is necessary.
(4)  Any physician who violates the provisions of this section is guilty of unprofessional conduct as defined in Section 58-67-102 or 58-68-102, and his license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with Sections 58-67-401 and 58-67-402, Utah Medical Practice Act, or Sections 58-68-401 and 58-68-402, Utah Osteopathic Medical Practice Act.
(5)  A physician is not guilty of violating this section for failure to furnish any of the information described in Subsection (1), if:
(a)  he can demonstrate by a preponderance of the evidence that he reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the pregnant woman;
(b)  in his professional judgment, the abortion was necessary to save the pregnant woman's life;
(c)  the pregnancy was the result of rape or rape of a child, as defined in Sections 76-5-402 and 76-5-402.1;
(d)  the pregnancy was the result of incest, as defined in Subsection 76-5-406(10) and Section 76-7-102;
(e)  in his professional judgment the abortion was to prevent the birth of a child who would have been born with grave defects; or
(f)  the pregnant woman was 14 years of age or younger.
(6)  A physician who complies with the provisions of this section may not be held civilly liable to his patient for failure to obtain informed consent under Section 78-14-5.

Amended by Chapter 221, 1997 General Session

Re: Failure to obtain informed consent

78-14-5.   Failure to obtain informed consent -- Proof required of patient -- Defenses -- Consent to health care.

(1) When a person submits to health care rendered by a health care provider, it shall be presumed that what the health care provider did was either expressly or impliedly authorized to be done. For a patient to recover damages from a health care provider in an action based upon the provider's failure to obtain informed consent, the patient must prove the following:
(a)  that a provider-patient relationship existed between the patient and health care provider;
(b)  the health care provider rendered health care to the patient;
(c)  the patient suffered personal injuries arising out of the health care rendered;
(d)  the health care rendered carried with it a substantial and significant risk of causing the patient serious harm;
(e)  the patient was not informed of the substantial and significant risk;
(f)  a reasonable, prudent person in the patient's position would not have consented to the health care rendered after having been fully informed as to all facts relevant to the decision to give consent. In determining what a reasonable, prudent person in the patient's position would do under the circumstances, the finder of fact shall use the viewpoint of the patient before health care was provided and before the occurrence of any personal injuries alleged to have arisen from said health care; and
(g)  the unauthorized part of the health care rendered was the proximate cause of personal injuries suffered by the patient.
(2)  It shall be a defense to any malpractice action against a health care provider based upon alleged failure to obtain informed consent if:
(a)  the risk of the serious harm which the patient actually suffered was relatively minor;
(b)  the risk of serious harm to the patient from the health care provider was commonly known to the public;
(c)  the patient stated, prior to receiving the health care complained of, that he would accept the health care involved regardless of the risk; or that he did not want to be informed of the matters to which he would be entitled to be informed;
(d)  the health care provider, after considering all of the attendant facts and circumstances, used reasonable discretion as to the manner and extent to which risks were disclosed, if the health care provider reasonably believed that additional disclosures could be expected to have a substantial and adverse effect on the patient's condition; or
(e)  the patient or his representative executed a written consent which sets forth the nature and purpose of the intended health care and which contains a declaration that the patient accepts the risk of substantial and serious harm, if any, in hopes of obtaining desired beneficial results of health care and which acknowledges that health care providers involved have explained his condition and the proposed health care in a satisfactory manner and that all questions asked about the health care and its attendant risks have been answered in a manner satisfactory to the patient or his representative; such written consent shall be a defense to an action against a health care provider based upon failure to obtain informed consent unless the patient proves that the person giving the consent lacked capacity to consent or shows by clear and convincing proof that the execution of the written consent was induced by the defendant's affirmative acts of fraudulent misrepresentation or fraudulent
omission to state material facts.
(3)  Nothing contained in this act shall be construed to prevent any person 18 years of age or over from refusing to consent to health care for his own person upon personal or religious grounds.
(4)  The following persons are authorized and empowered to consent to any health care not prohibited by law:
(a)  any parent, whether an adult or a minor, for his minor child;
(b)  any married person, for a spouse;
(c)  any person temporarily standing in loco parentis, whether formally serving or not, for the minor under his care and any guardian for his ward;
(d)  any person 18 years of age or over for his or her parent who is unable by reason of age, physical or mental condition, to provide such consent;
(e)  any patient 18 years of age or over;
(f)  any female regardless of age or marital status, when given in connection with her pregnancy or childbirth;
(g)  in the absence of a parent, any adult for his minor brother or sister; and
(h)  in the absence of a parent, any grandparent for his minor grandchild.
(5)  No person who in good faith consents or authorizes health care treatment or procedures for another as provided by this act shall be subject to civil liability.

Amended by Chapter 9, 2001 General Session



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