SENATE, No. 4004

STATE OF NEW JERSEY

218th LEGISLATURE

 

INTRODUCED JUNE 24, 2019

 


 

Sponsored by:

Senator  FRED H. MADDEN, JR.

District 4 (Camden and Gloucester)

 

 

 

 

SYNOPSIS

     Expressly prohibits examination of patient by health care practitioner without patient's informed written consent.

 

CURRENT VERSION OF TEXT

     As introduced.

 


An Act concerning the practice of medicine and supplementing Title 45 of the Revised Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    a.  Except as provided in subsection b. of this section, no individual licensed or certified to practice health care pursuant to Title 45 of the Revised Statutes shall conduct an examination of any patient without the patient's informed written consent to the examination.  If the patient is a minor, unconscious, unresponsive, or otherwise lacks the capacity to provide informed written consent to an examination, consent may be provided by any individual authorized to make health care decisions on behalf of the patient.  If a health care practitioner authorized to perform an examination of a patient determines that an additional examination is required that is different in nature from the examination to which the patient or the patient's authorized representative previously consented, the health care practitioner shall obtain a separate informed written consent prior to performing the additional examination. 

     b.    The requirements of subsection a. of this section shall not apply in the case of emergency in which the patient is unconscious or unresponsive and it reasonably appears that immediate medical treatment is necessary to prevent severe or worsening injury to the patient or to save the patient's life, in which case a health care practitioner may render any appropriate emergency treatment services as are necessary, including performing any examinations of the patient as shall be necessary to evaluate and determine the appropriate course of emergency treatment for the patient.  Nothing in this subsection shall authorize the provision of emergency treatment in any case in which the practitioner knows or has reason to know the patient has executed a do not resuscitate order or has otherwise proscriptively refused emergency treatment.

     c.     In no case shall any examination of a patient be undertaken for educational or training purposes unless the patient has provided separate, informed consent, verbally and in writing, to the examination.  When requesting separate informed consent to conduct an examination for educational or training purposes, the health care practitioner requesting informed consent shall advise the patient of the exact nature of the examination, of the estimated number of students and other individuals who will be performing or participating in the examination, and that no medical care or treatment will be denied to the patient if the patient withholds consent to an examination for educational or training purposes.  In the event that the examination for educational or training purposes would take place during, or in association with, a medical procedure, the consent required pursuant to this subsection shall be obtained independently of, and in addition to, any informed consent provided by the patient to undergo the medical procedure; provided that nothing in this subsection shall be deemed to prohibit a practitioner from obtaining informed consent to both the medical procedure and the examination for educational or training purposes at the same time, provided that it is clear to the patient that the consents are being requested for distinct and independent purposes.

     d.    As used in this section:

     "Examination" means a physical evaluation of the body of a patient, including: any visual assessments of the exterior, superficial areas of the patient's body; any visual, aural, olfactory, tactile, or mechanical inspections of any of the patient's bodily cavities; and any imaging procedures undertaken to inspect the interior of the patient's body.

     "Informed consent" means the affirmative authorization provided by a patient or the patient's authorized representative to a health care practitioner to perform an examination of the patient, which authorization shall not be valid unless the health care practitioner first provides the patient or the patient's representative with a full description of the nature and attendant risks associated with the proposed examination.

 

     2.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill provides that health care practitioners may not perform an examination of a patient without the patient, or the patient's authorized representative, providing informed written consent to the examination.  As used in the bill, "informed consent" means an affirmative authorization to perform an examination, which authorization will not be valid unless the health care practitioner first provides the patient or the patient's representative with a full description of the nature and attendant risks associated with the proposed examination.  "Examination" includes any visual assessments of the exterior, superficial areas of the patient's body; any visual, aural, olfactory, tactile, or mechanical inspections of any of the patient's bodily cavities; and any imaging procedures undertaken to inspect the interior of the patient's body.  Informed consent may be provided verbally or in writing.

     If a health care practitioner authorized to perform an examination determines that an additional examination is required that is different in nature from the examination to which the patient or the patient's authorized representative previously consented, the health care practitioner will be required to obtain a separate informed written consent prior to performing the additional examination. 

     These informed written consent requirements will not apply in situations in which the patient is unconscious or unresponsive and it reasonably appears that emergency treatment is needed to prevent injury or death to the patient, in which case the emergency treatment provided may include any examinations as are necessary to evaluate and determine the appropriate course of emergency treatment for the patient.  Nothing in this exception to the requirements of the bill will authorize the provision of emergency treatment in any case in which the practitioner knows or has reason to know the patient has executed a do not resuscitate order or has otherwise proscriptively refused emergency treatment.

     The bill additionally requires a patient provide a separate informed consent both verbally and in writing prior to performing any examination of a patient for educational or training purposes.  When requesting separate informed consent to conduct an examination for educational or training purposes, the health care practitioner requesting informed consent will be required to advise the patient of the exact nature of the examination, of the estimated number of students and other individuals who will be performing or participating in the examination, and that no medical care or treatment will be denied to the patient if the patient withholds consent to an examination for educational or training purposes.  The bill specifies that, if the examination for educational or training purposes would take place during, or in association with, a medical procedure, the consent to the examination is to be obtained independently of any other consent the patient provides for the medical procedure, and it is to be made clear to the patient that the consents are being requested for separate and independent purposes.

     Currently, many medical students are taught how to conduct pelvic examinations using the bodies of anesthetized, unconscious women.  Although surveys indicate that between 70 and 100 percent of women expect their consent to be requested prior to a pelvic examination for educational purposes, in the vast majority of cases, women are not asked for, and have not provided, express consent to their bodies being used for teaching purposes.  At least five other states, including California, Hawaii, Illinois, Oregon, and Virginia, have adopted laws prohibiting the practice of conducting pelvic examinations without obtaining separate consent.  It is the sponsor's intent that, in order to protect the rights and bodily autonomy of all patients, and to ensure that trust remains a vital component of the patient-practitioner relationship, no examination be performed on a patient unless the patient has expressly provided informed consent to the examination.