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First Substitute H.B. 109
This document includes House Committee Amendments incorporated into the bill on Thu,
Feb 20, 2003 at 10:55 AM by bhilbert. -->
This document includes House Floor Amendments incorporated into the bill on Tue, Feb 25,
2003 at 6:13 PM by bhilbert. -->
Representative Katherine M. Bryson proposes the following substitute bill:
1
INFORMED CONSENT FOR
2
ELECTROCONVULSIVE TREATMENT AND
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REPORTING REQUIREMENTS
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2003 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Katherine M. Bryson
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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.
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The act prohibits the use of electroconvulsive treatment on children younger that 14
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years old. The act requires approval by a panel of physicians before administering
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h [
electric shock
]
ELECTROCONVULSIVE
h treatment on a child between 14 and 18 years of age.
11a
The act requires
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informed consent for the use of electroconvulsive treatment on adults. The act establishes
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the elements of informed consent. The act prohibits anyone other than a physician from
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performing electroconvulsive treatment. The act requires quarterly reporting of
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electroconvulsive treatment to the division and the Health Data Committee in the
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Department of Health. The act requires the division to enforce the reporting
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requirements and annually report statistical data regarding the use of electroconvulsive
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treatment to the governor and the Legislature. The act has an effective date of July 1,
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2003. The reporting requirements sunset in 2008.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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17A-3-611, as renumbered and amended by Chapter 186, Laws of Utah 1990
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62A-15-704, as renumbered and amended by Chapter 8, Laws of Utah 2002, Fifth
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Special Session
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ENACTS:
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62A-15-1101, Utah Code Annotated 1953
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62A-15-1102, Utah Code Annotated 1953
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62A-15-1103, Utah Code Annotated 1953
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62A-15-1104, Utah Code Annotated 1953
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62A-15-1105, Utah Code Annotated 1953
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62A-15-1106, Utah Code Annotated 1953
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62A-15-1107, Utah Code Annotated 1953
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62A-15-1108, Utah Code Annotated 1953
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63-55b-162, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
17A-3-611
is amended to read:
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17A-3-611. Specified treatments prohibited -- Criminal penalties.
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(1) It is a misdemeanor to:
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(a) give [shock treatment,] h [
a lobotomy
] h [,] h [
or
] h surgery to anyone without the
39a
written
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consent of [his] the person or the person's next of kin or legal guardian; or
41
(b) give electroconvulsive treatment to a person without the written consent of the
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person in accordance with Sections
62A-15-1102
and
62A-15-1103
.
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(2) Services provided under this part are governed by [the] Title 58, Chapter 67, Utah
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Medical Practice Act.
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[(2)] (3) It is a felony to give psychiatric treatment, nonvocational mental health
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counseling, case-finding testing, psychoanalysis, drugs, [shock treatment] electroconvulsive
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treatment, lobotomy, or surgery to any individual for the purpose of changing his concept of,
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belief about, or faith in God.
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Section 2.
Section
62A-15-704
is amended to read:
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62A-15-704. Invasive treatment -- Due process proceedings.
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(1) For purposes of this section, "invasive treatment" means treatment in which a
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constitutionally protected liberty or privacy interest may be affected, including antipsychotic
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medication, electroshock therapy, and psychosurgery.
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(2) The requirements of this section, and Part 11, Electroconvulsive Treatment
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Regulations, apply to all children receiving services or treatment from a local mental health
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authority, its designee, or its provider regardless of whether a local mental health authority has
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physical custody of the child or the child is receiving outpatient treatment from the local
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authority, its designee, or provider.
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(3) (a) The division shall promulgate rules, in accordance with Title 63, Chapter 46a,
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Utah Administrative Rulemaking Act, establishing due process procedures for children prior to
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any invasive treatment as follows:
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(i) with regard to antipsychotic medications, if either the parent or child disagrees with
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that treatment, a due process proceeding shall be held in compliance with the procedures
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established under this Subsection (3);
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(ii) with regard to psychosurgery and h [
electroshock therapy
]
ELECTROCONVULSIVE
65a
TREATMENT
h administered to a child age
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14 or older, a due process proceeding shall be conducted pursuant to the procedures established
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under this Subsection (3), regardless of whether the parent or child agree or disagree with the
68
treatment; and
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[(iii)] h [
(ii)
]
(iii)
h other possible invasive treatments may be conducted unless either the
69a
parent
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or child disagrees with the treatment, in which case a due process proceeding shall be
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conducted pursuant to the procedures established under this Subsection (3).
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(b) In promulgating the rules required by Subsection (3)(a), the division shall consider
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the advisability of utilizing an administrative law judge, court proceedings, a neutral and
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detached fact finder, and other methods of providing due process for the purposes of this
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section. The division shall also establish the criteria and basis for determining when invasive
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treatment should be administered.
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Section 3.
Section
62A-15-1101
is enacted to read:
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Part 11. Electroconvulsive Treatment Regulations
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62A-15-1101. Application.
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(1) For purposes of this part, "electroconvulsive treatment" includes prefrontal sonic
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sound treatment, or applied electrical voltage to the brain through electrodes which results in a
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grand mal seizure or epileptic seizure and which is administered to treat mental illness.
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(2) This part applies to the use of electroconvulsive treatment by any person who uses
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or administers electroconvulsive treatment, including:
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(a) a physician licensed under Title 58, Chapter 67, Utah Medical Practice Act, or Title
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58, Chapter 68, Utah Osteopathic Medical Practice Act;
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(b) a hospital or facility licensed under Section
26-21-9
;
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(c) a local mental health authority subject to this title, its designee or providers; and
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(d) the Utah State Hospital and other mental health facilities.
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Section 4.
Section
62A-15-1102
is enacted to read:
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62A-15-1102. Use of electroconvulsive treatment.
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Electroconvulsive treatment may not be used on:
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(1) a person who is younger than 14 years of age;
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(2) a person who is between 14 and 18 years of age, unless the provisions of
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Subsection
62A-15-1103
(5) are met; or
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(3) a person who is 18 years of age or older, unless the person consents to the use of
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the treatment in accordance with Section
62A-15-1103
.
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Section 5.
Section
62A-15-1103
is enacted to read:
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62A-15-1103. Consent to treatment.
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(1) The division shall adopt administrative rules which establish a standard written
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consent form to be used when electroconvulsive treatment is considered. The rule shall
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prescribe the information that must be contained in the written consent for electroconvulsive
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treatment.
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(2) The written consent form must clearly state at a minimum:
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(a) the nature and purpose of the procedure;
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(b) the nature, potential, and probability of the side effects and significant risks of the
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treatment commonly known by the medical profession, especially noting the possible degree
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and duration of memory loss, the possibility of permanent irrevocable memory loss, and the
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possibility of death; and
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(c) the probable degree and duration of improvement or remission expected with or
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without the procedure.
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(3) Before each treatment series begins the physician administering the treatment shall
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ensure that:
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(a) the person receives a written copy of the consent form that is h [
:
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(i) in English; or
] h
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h [
(ii)
] h in the person's primary language, if h [
not in English and if provided by the division
]
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POSSIBLE
h ;
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(b) the contents of the consent form are explained to the person:
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(i) orally, in simple, nontechnical terms in the person's primary language, if possible; or
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(ii) through the use of a means reasonably calculated to communicate with a hearing
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impaired or visually impaired person, if applicable;
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(c) the person signs a copy of the consent form stating that the person has read the
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consent form and understands the information included in the documents; and
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(d) the signed copy of the consent form is made a part of the person's clinical record.
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(4) For a person 65 years of age or older, before each treatment series begins, the
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physician administering the procedure shall:
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(a) ensure that a physician has conducted a physical examination of the person and has
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determined that the procedure is appropriate and is medically necessary;
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(b) make the form described by Subsection (1) available to the person; and
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(c) inform the person of any known current medical condition that may increase the
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possibility of injury or death as a result of the treatment.
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(5) For a person between h [
the age of
] h 14 and 18 years of age, before each treatment
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series begins, the physician administering the procedure shall ensure that:
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(a) the due process provisions of Section
62A-15-704
have been met, if applicable; or
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(b) if Section
62A-15-704
is not applicable:
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(i) the parent or legal guardian of the child has been given the form described by
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Subsection (1); and
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(ii) three physicians have signed an appropriate form that states the procedure is
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medically necessary.
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(6) (a) A person who consents to the administration of electroconvulsive treatment may
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revoke the consent for any reason and at any time.
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(b) Revocation of consent is effective immediately.
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Section 6.
Section
62A-15-1104
is enacted to read:
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62A-15-1104. Physician requirement.
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(1) Only a physician licensed under Title 58, Chapter 67, Utah Medical Practice Act, or
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Title 58, Chapter 68, Utah Osteopathic Medical Practice Act, may administer electroconvulsive
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treatment.
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(2) A physician may not delegate the act of administering the treatment. A
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nonphysician who administers electroconvulsive treatment is considered to be practicing
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medicine in violation of Title 58, Chapter 67, Utah Medical Practice Act.
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Section 7.
Section
62A-15-1105
is enacted to read:
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62A-15-1105. Reports.
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(1) A hospital or facility where electroconvulsive treatment is administered or a
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physician administering the treatment on an outpatient basis shall submit to the division and to
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the Health Data Committee created in Section
26-1-7
, semiannual reports relating to the
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administration of the treatment in the hospital or facility or by the physician.
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(2) A report must state semiannually:
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(a) the name of each physician who has privileges in the facility to perform
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electroconvulsive treatment and the number of electroconvulsive treatments performed by each
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physician;
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(b) the total number of persons who received the treatment;
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(c) the age, sex, and race of each person receiving the treatment;
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(d) the diagnosis for each person receiving the treatment;
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(e) the source of the payment for the treatment;
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(f) the average number of electroconvulsive treatments administered for each complete
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series of treatments, but not including maintenance treatments;
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(g) the average number of maintenance electroconvulsive treatments administered per
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month;
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(h) the number of fractures, reported complaints of h
SEVERE AND PERSISTENT
h memory
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losses, incidents of apnea,
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and cardiac arrests without death;
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(i) autopsy findings, including investigation of petichial hemorrhages and other small
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blood vessel hemorrhages in the brain tissue, if an autopsy was performed and if death
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followed within 14 days after the date of the administration of the treatment; and
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(j) any other information required by the division.
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(3) The information required by Subsections (2)(h) and (2)(i) must include the name of
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the physician who administered the treatment for each occurrence listed in Subsections (2)(h)
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and (2)(i).
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Section 8.
Section
62A-15-1106
is enacted to read:
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62A-15-1106. Use of information -- Report.
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(1) The division shall use the information received under Section
62A-15-1105
to
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analyze and monitor the use of electroconvulsive treatment administered to treat mental illness.
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(2) (a) The division shall annually file with the governor and the Health and Human
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Services Interim Committee of the Legislature a written report summarizing the information
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received under Section
62A-15-1105
. The information in the report shall be summarized by
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facility and by physician.
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(b) The division may not directly or indirectly identify in a report issued under this
186
section a patient who received the treatment.
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(c) The report prepared in accordance with this Subsection (2) is a public document
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under the provisions of Title 63, Chapter 2, Government Records Access and Management Act.
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Section 9.
Section
62A-15-1107
is enacted to read:
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62A-15-1107. Enforcement.
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The division shall enforce the provisions of this part and may, as the division considers
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appropriate:
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(1) issue a warning to any physician, hospital, or facility who fails to obtain consent or
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file a report required by this part; and
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(2) report violations of this part to the appropriate licensing authority for the physician,
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hospital, or facility.
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Section 10.
Section
62A-15-1108
is enacted to read:
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62A-15-1108. Consent to healthcare.
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A health care provider who obtains informed consent in accordance with this part has
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also met the requirements for informed consent under Section
78-14-5
.
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Section 11.
Section
63-55b-162
is enacted to read:
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63-55b-162. Repeal dates -- Title 62A.
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Sections
62A-15-1105
and
62A-15-1106
regarding reporting requirements for
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electroconvulsive h [
shock
] h treatments are repealed on July 1, 2008.
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Section 12. Effective date.
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This act takes effect on July 1, 2003.
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