Bill Text: MI SB0681 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Health; testing; requirement to obtain informed consent before testing for human immunodeficiency virus (HIV); eliminate, and provide option to decline test in writing. Amends sec. 5133 of 1978 PA 368 (MCL 333.5133).

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2009-07-15 - Referred To Committee On Health Policy [SB0681 Detail]

Download: Michigan-2009-SB0681-Introduced.html

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SENATE BILL No. 681

 

 

July 15, 2009, Introduced by Senator GEORGE and referred to the Committee on Health Policy.

 

 

 

     A bill to amend 1978 PA 368, entitled

 

"Public health code,"

 

by amending section 5133 (MCL 333.5133), as amended by 1994 PA 420.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 5133. (1) Except as otherwise provided in subsections

 

(12) and (13), a physician who orders an HIV test or a health

 

facility that performs an HIV test shall provide counseling

 

appropriate to the test subject both before and after the test is

 

administered.

 

     (2) Except as otherwise provided in this part, a physician, or

 

an individual to whom the physician has delegated authority to

 

perform a selected act, task, or function under section 16215,

 

shall not may order an HIV test for the purpose of diagnosing HIV

 

infection without first receiving the written, informed consent of

 

the test subject. For purposes of this section, written, informed

 

consent consists of a signed writing executed by the test subject

 

or the legally authorized representative of the test subject that

 

includes, at a minimum, all of the following:

 

     (a) An explanation of the test including, but not limited to,

 

the purpose of the test, the potential uses and limitations of the

 

test, and the meaning of test results.

 

     (b) An explanation of the rights of the test subject

 

including, but not limited to, all of the following:

 

     (i) The right to withdraw consent to the test at any time

 

before the administration of the test.

 

     (ii) The right under this part to confidentiality of the test

 

results.

 

     (iii) The right under this part to consent to and participate in

 

the test on an anonymous basis.

 

     (c) The person or class of persons to whom the test results

 

may be disclosed under this part. Unless the HIV test is declined

 

in writing under this section, the test subject's consent to

 

general medical care is considered consent to an HIV test.

 

     (3) Beginning July 28, 1989 October 1, 2009, a physician or an

 

individual to whom the physician has delegated authority to perform

 

a selected act, task, or function under section 16215 who orders an

 

HIV test shall distribute to each test subject a pamphlet regarding

 

the HIV test on a form provided by the department. The department

 

shall develop the pamphlet, which shall include all of the

 

following:

 

     (a) The purpose and nature of the test.

 

     (b) The consequences of both taking and not taking the test.

 

     (c) The meaning of the test results.

 

     (d) Other information considered necessary or relevant by the

 

department.

 

     (e) A model consent form for the signed writing required under

 

subsection (2) test subject to use if he or she wishes to decline

 

the HIV test in writing. The department shall include in the model

 

consent form all of the information required under subsection

 

(2)(a), (b), and (c). following:

 

     (i) An explanation of the test including, but not limited to,

 

the purpose of the test, the potential uses and limitations of the

 

test, and the meaning of test results.

 

     (ii) An explanation of the rights of the test subject,

 

including, but not limited to, all of the following:

 

     (A) The right to decline the test at any time before the

 

administration of the test and the circumstances under which the

 

test subject does not have the right to decline the test.

 

     (B) The right under this part to confidentiality of the test

 

results.

 

     (C) The right under this part to consent to and participate in

 

the test on an anonymous basis.

 

     (iii) The person or class of persons to whom the test results

 

may be disclosed under this part.

 

     (iv) A place for the test subject to decline the HIV test in

 

writing.

 

     (4) The department, the Michigan board of medicine, and the

 

Michigan board of osteopathic medicine and surgery shall make the

 

pamphlet required under subsection (3) available to physicians. The

 

Michigan board of medicine and the Michigan board of osteopathic

 

medicine and surgery shall notify in writing all physicians subject

 

to this section of the requirements of this section and the

 

availability of the pamphlet by July 10, 1989 October 1, 2009. Upon

 

request, the Michigan board of medicine and the Michigan board of

 

osteopathic medicine and surgery shall provide copies of the

 

pamphlet, free of charge, to a physician who is subject to this

 

section.

 

     (5) If a test subject is given a copy of the pamphlet required

 

under subsection (3), the physician or individual described in

 

subsection (3) shall include in the test subject's medical record a

 

form, signed by the test subject, indicating that he or she has

 

been given a copy of the pamphlet.

 

     (6) A test subject who executes a signed writing pursuant to

 

subsection (2), as that subsection read before the effective date

 

of the amendatory act that added this phrase, is barred from

 

subsequently bringing a civil action based on failure to obtain

 

informed consent for the HIV test against the physician who ordered

 

the HIV test.

 

     (7) The department shall provide the pamphlet required under

 

subsection (3). The department shall develop the pamphlet and have

 

it ready for distribution by June 28, 1989 October 1, 2009. The

 

department shall write and print the pamphlet in clear,

 

nontechnical English and Spanish. The department shall distribute

 

the pamphlet, upon request and free of charge, to a physician or

 

other person or a governmental entity that is subject to this

 

section.

 

     (8) In addition to complying with the duties imposed under

 

subsection (7), the department shall provide copies of the pamphlet

 

to the Michigan board of medicine and the Michigan board of

 

osteopathic medicine and surgery. The department shall provide

 

copies of the pamphlet to other persons upon written request, at

 

cost, and shall also provide copies of the pamphlet free of charge,

 

upon request, to public or private schools, colleges, and

 

universities.

 

     (9) An individual who undergoes an HIV test at a department

 

approved testing site may request that the HIV test be performed on

 

an anonymous basis. If an individual requests that the HIV test be

 

performed on an anonymous basis, the staff of the department

 

approved testing site shall administer the HIV test anonymously or

 

under the condition that the test subject not be identified, and

 

shall obtain consent to the test using a coded system that does not

 

link the individual's identity with the request for the HIV test or

 

the HIV test results. If the test results of an HIV test performed

 

under this subsection indicate that the test subject is HIV

 

infected, the staff of the department approved testing site shall

 

proceed with partner notification in the same manner in which a

 

local health department would proceed as described in section

 

5114a(3) to (5).

 

     (10) Subsection (2) This section does not apply to an HIV test

 

performed for the purpose of research, if the test is performed in

 

such a manner that the identity of the test subject is not revealed

 

to the researcher and the test results are not made known to the

 

test subject.

 

     (11) A health facility may develop a standard protocol for an

 

HIV test performed upon a patient in the health facility in

 

preparation for an incisive or invasive surgical procedure.

 

     (12) This section does not apply to an HIV test performed upon

 

a patient in a health facility if the conditions in subdivisions

 

(a) and (b) or the conditions in subdivisions (a) and (c) are met:

 

     (a) The patient is informed in writing upon admission to the

 

health facility that an HIV test may be performed upon the patient

 

without the written consent required under this section his or her

 

right to decline under circumstances described in subdivision (b)

 

or (c). As used in this subdivision, "admission" means the

 

provision of an inpatient or outpatient health care service in a

 

health facility.

 

     (b) The HIV test is performed after a health professional,

 

health facility employee, police officer, or fire fighter, or a

 

medical first responder, emergency medical technician, emergency

 

medical technician specialist, or paramedic licensed under section

 

20950 or 20952 sustains in the health facility, while treating the

 

patient before transport to the health facility, or while

 

transporting the patient to the health facility, a percutaneous,

 

mucous membrane, or open wound exposure to the blood or other body

 

fluids of the patient.

 

     (c) The HIV test is performed pursuant to a request made under

 

section 20191(2).

 

     (13) Subsections (1) to (3) do This section does not apply if

 

the test subject is unable to receive or understand, or both, the

 

pretest counseling and the pamphlet described in subsections (1) to

 

(3) or to execute the signed decline the test in writing as

 

described in subsection (2), and the legally authorized

 

representative of the test subject is not readily available to

 

receive the pamphlet or execute written consent decline for the

 

test subject.

 

     (14) If the results of an HIV test performed pursuant to

 

subsection (11) or (12) or under circumstances described in

 

subsection (13) indicate that the patient is HIV infected, the

 

health facility shall inform the patient of the positive test

 

results and provide the patient with appropriate counseling

 

regarding HIV infection and acquired immunodeficiency syndrome.