First Substitute H.B. 85

This document includes House Floor Amendments incorporated into the bill on Fri, Jan 27, 2006 at 2:06 PM by chopkin. --> This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Mon, Feb 27, 2006 at 11:08 AM by rday. --> This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Wed, Mar 1, 2006 at 11:00 AM by rday. -->

Representative Kerry W. Gibson proposes the following substitute bill:

1 ABORTION BY A MINOR - PARENTAL
2 NOTIFICATION AND CONSENT
3 2006 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Kerry W. Gibson
6 Senate Sponsor: Darin G. Peterson
7 Cosponsors:
8 Douglas C. Aagard
9 J. Stuart Adams
10 Jeff Alexander
11 Sheryl L. Allen
12 Roger E. Barrus
13 Ron Bigelow
14 DeMar Bud Bowman
15 Craig W. Buttars
16 D. Gregg Buxton
17 LaVar Christensen
18 David Clark
19 Stephen D. Clark
20 David N. Cox
21 Greg J. Curtis
22 Bradley M. Daw
23 Margaret Dayton
24 Brad L. DeeGlenn A. Donnelson
John Dougall
James A. Dunnigan
Ben C. Ferry
Julie Fisher
Lorie D. Fowlke
Craig A. Frank
Ann W. Hardy
Wayne A. Harper
David L. Hogue
Kory M. Holdaway
Gregory H. Hughes
Eric K. Hutchings
Bradley T. Johnson
Todd E. Kiser
Bradley G. Last
M. Susan Lawrence
Rebecca D. LockhartSteven R. Mascaro
John G. Mathis
Ronda Rudd Menlove
Michael T. Morley
Joseph G. Murray
Merlynn T. Newbold
Michael E. Noel
Curtis Oda
Patrick Painter
Paul Ray
Aaron Tilton
David Ure
Stephen H. Urquhart
Mark W. Walker
Peggy Wallace
Richard W. Wheeler
Scott L Wyatt 25
26 LONG TITLE
27 General Description:
28 This bill amends the Utah Criminal Code, the Utah Human Services Code, and the Utah
29 Health Care Malpractice Act to require parental consent and notification for abortions
30 performed upon minors, subject to certain exceptions.

31 Highlighted Provisions:
32 This bill:
33 . defines terms;
34 . provides that a written report of incest or abuse made in connection with a minor
35 seeking an abortion may not disclose that the minor obtained or considered an
36 abortion;
37 . requires that at least 24 hours before a physician performs an abortion on a minor,
38 the physician shall notify a parent or guardian of the minor that the minor intends to
39 have an abortion, unless:
40 . a medical emergency exists;
41 . H. the physician reports that .H the parent or guardian abused the
41a H. [ woman ] minor .H or caused the H. [ woman's ] minor's .H pregnancy by
42 engaging in incest with the H. [ woman ] minor .H ; or
43 . the parent or guardian has not assumed responsibility for the minor's care and
44 upbringing;
45 . provides that, in a medical emergency, except when it is necessary to immediately
46 perform an abortion, the physician shall notify a parent or guardian of the minor, as
47 early as possible before the abortion, that the minor intends to have an abortion;
48 . removes the requirement that a physician notify the spouse of a married woman that
49 she intends to obtain an abortion;
50 . requires that a minor obtain parental consent before obtaining an abortion unless:
51 . the minor obtains the right, by court order, to consent to an abortion without
52 parental consent; or
53 . a medical emergency exists;
54 . provides that a minor may petition a court to determine whether a minor should be
55 granted the right to consent to an abortion without parental consent;
56 . provides that the proceedings described above are closed to the public;
57 . provides that a court shall order that a minor may consent to an abortion without
58 parental consent only if the court finds by a preponderance of the evidence that:
59 . the minor is mature and capable of giving informed consent to the abortion and
60 has given her informed consent; or
61 . an abortion would be in the minor's best interest;

62 . grants rulemaking authority to the Judicial Council to:
63 . administer the proceedings described in this bill;
64 . provide for an appeal of a decision described in the preceding paragraph;
65 . ensure the confidentiality of proceedings described in this bill and the records
66 relating to the proceedings; and
67 . establish procedures to expedite the hearing and appeal proceedings described in
68 this bill;
69 . amends the Utah Health Care Malpractice Act and related provisions to conform to
70 the consent requirements of this bill; and
71 . makes technical changes.
72 Monies Appropriated in this Bill:
73 None
74 Other Special Clauses:
75 None
76 Utah Code Sections Affected:
77 AMENDS:
78 62A-4a-408, as renumbered and amended by Chapter 260, Laws of Utah 1994
79 76-7-304, as enacted by Chapter 33, Laws of Utah 1974
80 76-7-305, as last amended by Chapter 221, Laws of Utah 1997
81 76-7-305.5, as last amended by Chapter 13, Laws of Utah 1998
82 76-7-315, as last amended by Chapter 5, Laws of Utah 1996, Second Special Session
83 78-14-5, as last amended by Chapter 9, Laws of Utah 2001
84 ENACTS:
85 76-7-304.5, Utah Code Annotated 1953
86
87 Be it enacted by the Legislature of the state of Utah:
88 Section 1. Section 62A-4a-408 is amended to read:
89 62A-4a-408. Written reports.
90 (1) Reports made pursuant to this part shall be followed by a written report within 48
91 hours, if requested by the division. The division shall immediately forward a copy of that
92 report to the statewide central register, on forms supplied by the register.

93 (2) If, in connection with an intended or completed abortion by a minor, a physician is
94 required to make a report of incest or abuse of a minor, the report may not include information
95 that would in any way disclose that the report was made in connection with:
96 (a) an abortion; or
97 (b) a consultation regarding an abortion.
98 Section 2. Section 76-7-304 is amended to read:
99 76-7-304. Considerations by physician -- Notice to a parent or guardian --
100 Exceptions.
101 (1) As used in this section:
102 (a) "abuse" is as defined in Section 62A-4a-101 ; and
103 (b) "minor" means a person who is:
104 (i) under 18 years of age;
105 (ii) unmarried; and
106 (iii) not emancipated.
107 (2) To enable the physician to exercise [his] the physician's best medical judgment,
108 [he] the physician shall[: (1) Consider] consider all factors relevant to the well-being of the
109 woman upon whom the abortion is to be performed including[, but not limited to,]:
110 (a) her physical, emotional and psychological health and safety[,];
111 (b) her age[,]; and
112 (c) her familial situation.
113 [(2) Notify, if possible, the parents or guardian of the woman upon whom the abortion
114 is to be performed, if she is a minor or the husband of the woman, if she is married.]
115 (3) Subject to Subsection (4), at least 24 hours before a physician performs an abortion
116 on a minor, the physician shall notify a parent or guardian of the minor that the minor intends
117 to have an abortion.
118 (4) A physician is not required to comply with Subsection (3) if:
119 (a) subject to Subsection (5)(a):
120 (i) a medical condition exists that, on the basis of the physician's good faith clinical
121 judgment, so complicates the medical condition of a pregnant minor as to necessitate the
122 abortion of her pregnancy to avert:
123 (A) the minor's death; or

124 (B) a serious risk of substantial and irreversible impairment of a major bodily function
125 of the minor; and
126 (ii) there is not sufficient time to give the notice required under Subsection (3) before it
127 is necessary to terminate the minor's pregnancy in order to avert the minor's death or
128 impairment described in Subsection (4)(a)(i);
129 (b) subject to Subsection (5)(b):
130 (i) H. the physician complies with Subsection (6); and
130a (ii) (A) .H the minor is pregnant as a result of incest to which the parent or guardian was a
131 party; or
132 H. [ (ii) ] (B) .H the parent or guardian has abused the minor; or
133 (c) subject to Subsection (5)(b), the parent or guardian has not assumed responsibility
134 for the minor's care and upbringing.
135 (5) (a) If, for the reason described in Subsection (4)(a), a physician does not give the
136 24-hour notice described in Subsection (3), the physician shall give the required notice as early
137 as possible before the abortion, unless it is necessary to perform the abortion immediately in
138 order to avert the minor's death or impairment described in Subsection (4)(a)(i).
139 (b) If, for a reason described in Subsection (4)(b) or (c), a parent or guardian of a minor
140 is not notified that the minor intends to have an abortion, the physician shall notify another
141 parent or guardian of the minor, if the minor has another parent or guardian that is not exempt
142 from notification under Subsection (4)(b) or (c).
142a H. (6) If, for a reason described in Subsection (4)(b)(ii)(A) or (B), a physician does not
142b notify a parent or guardian of a minor that the minor intends to have an abortion, the
142c physician shall report the incest or abuse to the Division of Child and Family Services within
142d the Department of Human Services. .H
143 Section 3. Section 76-7-304.5 is enacted to read:
144 76-7-304.5. Consent required for abortions performed on minors -- Hearing to
145 allow a minor to self-consent -- Appeals.
146 (1) As used in this section, "minor" is as defined in Subsection 76-7-304 (1).
147 (2) In addition to the other requirements of this part, S. a physician may not perform .S 147a an abortion S. [ may not be performed ] .S
148 on a minor unless:
149 (a) the S. [ minor ] physician .S obtains the informed written consent of a parent or
149a guardian of the minor S. , consistent with Section 76-7-305 .S ;
150 (b) the minor is granted the right, by court order under Subsection (5)(b), to consent to
151 the abortion without obtaining consent from a parent or guardian; or
152 (c) (i) a medical condition exists that, on the basis of the physician's good faith clinical
153 judgment, so complicates the medical condition of a pregnant minor as to necessitate the
154 abortion of her pregnancy to avert:

155 (A) the minor's death; or
156 (B) a serious risk of substantial and irreversible impairment of a major bodily function
157 of the minor; and
158 (ii) there is not sufficient time to obtain the consent in the manner chosen by the minor
159 under Subsection (3) before it is necessary to terminate the minor's pregnancy in order to avert
160 the minor's death or impairment described in Subsection (2)(c)(i).
161 (3) A pregnant minor who wants to have an abortion may choose:
162 (a) to seek consent from a parent or guardian under Subsection (2)(a); or
163 (b) to seek a court order under Subsection (2)(b).
164 (4) If a pregnant minor fails to obtain the consent of a parent or guardian of the minor
165 to the performance of an abortion, or if the minor chooses not to seek the consent of a parent or
166 guardian, the minor may file a petition with the juvenile court to obtain a court order under
167 Subsection (2)(b).
168 (5) (a) A hearing on a petition described in Subsection (4) shall be closed to the public.
169 (b) After considering the evidence presented at the hearing, the court shall order that
170 the minor may obtain an abortion without the consent of a parent or guardian of the minor if
171 the court finds by a preponderance of the evidence that:
172 (i) the minor:
173 (A) has given her informed consent to the abortion; and
174 (B) is mature and capable of giving informed consent to the abortion; or
175 (ii) an abortion would be in the minor's best interest.
176 (6) The Judicial Council shall make rules that:
177 (a) provide for the administration of the proceedings described in this section;
178 (b) provide for the appeal of a court's decision under this section;
179 (c) ensure the confidentiality of the proceedings described in this section and the
180 records related to the proceedings; and
181 (d) establish procedures to expedite the hearing and appeal proceedings described in
182 this section.
183 Section 4. Section 76-7-305 is amended to read:
184 76-7-305. Informed consent requirements for abortion -- 24-hour wait mandatory
185 -- Emergency exceptions.

186 (1) No abortion may be performed unless a voluntary and informed written consent,
187 consistent with Section 8.08 of the American Medical Association's Code of Medical Ethics,
188 Current Opinions, and the provisions of this section is first obtained by the attending physician
189 from the woman upon whom the abortion is to be performed.
190 (2) Except in the case of a medical emergency, consent to an abortion is voluntary and
191 informed only if:
192 (a) at least 24 hours prior to the abortion, the physician who is to perform the abortion,
193 the referring physician, a registered nurse, nurse practitioner, advanced practice registered
194 nurse, certified nurse midwife, or physician's assistant [shall], in a face-to-face consultation,
195 orally [inform] informs the woman of:
196 (i) consistent with Subsection (3)(a), the nature of the proposed abortion procedure or
197 treatment, specifically how that procedure will affect the fetus, and the risks and alternatives to
198 an abortion procedure or treatment that any person would consider material to the decision of
199 whether or not to undergo an abortion[. The alternatives required to be provided under this
200 subsection shall include a description of adoption services, including private and agency
201 adoption methods, and a statement that it is legal for adoptive parents to financially assist in
202 pregnancy and birth expenses];
203 (ii) the probable gestational age and a description of the development of the unborn
204 child at the time the abortion would be performed; and
205 (iii) the medical risks associated with carrying her child to term;
206 (b) at least 24 hours prior to the abortion the physician who is to perform the abortion,
207 the referring physician, or, as specifically delegated by either of those physicians, a registered
208 nurse, licensed practical nurse, certified nurse-midwife, advanced practice registered nurse,
209 clinical laboratory technologist, psychologist, marriage and family therapist, clinical social
210 worker, or certified social worker has orally, in a face-to-face consultation, informed the
211 pregnant woman that:
212 (i) the Department of Health, in accordance with Section 76-7-305.5 , publishes printed
213 material and an informational video that:
214 (A) provides medically accurate information regarding all abortion procedures that may
215 be used;
216 (B) describes the gestational stages of an unborn child; and

217 (C) includes information regarding public and private services and agencies available
218 to assist her through pregnancy, at childbirth, and while the child is dependent, including
219 private and agency adoption alternatives; [and]
220 (ii) the printed material and a viewing of or a copy of the informational video shall be
221 provided to her free of charge;
222 (iii) medical assistance benefits may be available for prenatal care, childbirth, and
223 neonatal care, and that more detailed information on the availability of that assistance is
224 contained in the printed materials and the informational video published by the Department of
225 Health;
226 (iv) except as provided in Subsection (3)(b), the father of the unborn child is legally
227 required to assist in the support of her child, even in instances where he has offered to pay for
228 the abortion, and that the Office of Recovery Services within the Department of Human
229 Services will assist her in collecting child support[. In the case of rape, this information may
230 be omitted]; and
231 (v) she has the right to view an ultrasound of the unborn child, at no expense to her,
232 upon her request;
233 (c) the information required to be provided to the pregnant woman under Subsection
234 (2)(a) is also provided by the physician who is to perform the abortion, in a face-to-face
235 consultation, prior to performance of the abortion, unless the attending or referring physician
236 [was] is the individual [providing] who provides the information required under Subsection
237 (2)(a);
238 (d) a copy of the printed materials published by the Department of Health has been
239 provided to the pregnant woman;
240 (e) the informational video, published by the Department of Health, has been provided
241 to the pregnant woman in accordance with Subsection [(2)] (4); and
242 (f) the pregnant woman has certified in writing, prior to the abortion, that the
243 information required to be provided under Subsections (2)(a)[, (b), (c), (d), and] through (e)
244 was provided, in accordance with the requirements of those subsections.
245 (3) (a) The alternatives required to be provided under Subsection (2)(a)(i) shall include:
246 (i) a description of adoption services, including private and agency adoption methods;
247 and

248 (ii) a statement that it is legal for adoptive parents to financially assist in pregnancy and
249 birth expenses.
250 (b) The information described in Subsection (2)(b)(iv) may be omitted from the
251 information required to be provided to a pregnant woman under this section if the woman is
252 pregnant as the result of rape.
253 [(2)] (4) When the informational video described in Section 76-7-305.5 is provided to a
254 pregnant woman, the person providing the information shall first request that the woman view
255 the video at that time or at another specifically designated time and location. If the woman
256 chooses not to do so, a copy of the video shall be provided to her.
257 [(3)] (5) When a serious medical emergency compels the performance of an abortion,
258 the physician shall inform the woman prior to the abortion, if possible, of the medical
259 indications supporting [his] the physician's judgment that an abortion is necessary.
260 [(4)] (6) Any physician who violates the provisions of this section:
261 (a) is guilty of unprofessional conduct as defined in Section 58-67-102 or 58-68-102 [,];
262 and [his license for the practice of medicine and surgery]
263 (b) shall be subject to suspension or revocation of the physician's license for the
264 practice of medicine and surgery in accordance with Sections 58-67-401 and 58-67-402 , Utah
265 Medical Practice Act, or Sections 58-68-401 and 58-68-402 , Utah Osteopathic Medical
266 Practice Act.
267 [(5)] (7) A physician is not guilty of violating this section for failure to furnish any of
268 the information described in Subsection [(1)] (2), if:
269 (a) [he] the physician can demonstrate by a preponderance of the evidence that [he] the
270 physician reasonably believed that furnishing the information would have resulted in a severely
271 adverse effect on the physical or mental health of the pregnant woman;
272 (b) in [his] the physician's professional judgment, the abortion was necessary to save
273 the pregnant woman's life;
274 (c) the pregnancy was the result of rape or rape of a child, as defined in Sections
275 76-5-402 and 76-5-402.1 ;
276 (d) the pregnancy was the result of incest, as defined in Subsection 76-5-406 (10) and
277 Section 76-7-102 ;
278 (e) in his professional judgment the abortion was to prevent the birth of a child who

279 would have been born with grave defects; or
280 (f) the pregnant woman was 14 years of age or younger.
281 [(6)] (8) A physician who complies with the provisions of this section and Section
282 76-7-304.5 may not be held civilly liable to [his] the physician's patient for failure to obtain
283 informed consent under Section 78-14-5 .
284 Section 5. Section 76-7-305.5 is amended to read:
285 76-7-305.5. Requirements for printed materials and informational video --
286 Annual report of Department of Health.
287 (1) In order to insure that a woman's consent to an abortion is truly an informed
288 consent, the Department of Health shall publish printed materials and produce an informational
289 video in accordance with the requirements of this section. The department and each local
290 health department shall make those materials and a viewing of the video available at no cost to
291 any person. The printed material and the informational video shall be comprehensible and
292 contain all of the following:
293 (a) geographically indexed materials informing the woman of public and private
294 services and agencies available to assist her, financially and otherwise, through pregnancy, at
295 childbirth, and while the child is dependent, including services and supports available under
296 Section 35A-3-308 . Those materials shall contain a description of available adoption services,
297 including a comprehensive list of the names, addresses, and telephone numbers of public and
298 private agencies and private attorneys whose practice includes adoption, and explanations of
299 possible available financial aid during the adoption process. The information regarding
300 adoption services shall include the fact that private adoption is legal, and that the law permits
301 adoptive parents to pay the costs of prenatal care, childbirth, and neonatal care. The printed
302 information and video shall present adoption as a preferred and positive choice and alternative
303 to abortion. The department may, at its option, include printed materials that describe the
304 availability of a toll-free 24-hour telephone number that may be called in order to obtain,
305 orally, the list and description of services, agencies, and adoption attorneys in the locality of the
306 caller;
307 (b) truthful and nonmisleading descriptions of the probable anatomical and
308 physiological characteristics of the unborn child at two-week gestational increments from
309 fertilization to full term, accompanied by pictures or video segments representing the

310 development of an unborn child at those gestational increments. The descriptions shall include
311 information about brain and heart function and the presence of external members and internal
312 organs during the applicable stages of development. Any pictures used shall contain the
313 dimensions of the fetus and shall be realistic and appropriate for that woman's stage of
314 pregnancy. The materials shall be designed to convey accurate scientific information about an
315 unborn child at the various gestational ages, and to convey the state's preference for childbirth
316 over abortion;
317 (c) truthful, nonmisleading descriptions of abortion procedures used in current medical
318 practice at the various stages of growth of the unborn child, the medical risks commonly
319 associated with each procedure, including those related to subsequent childbearing, the
320 consequences of each procedure to the fetus at various stages of fetal development, the possible
321 detrimental psychological effects of abortion, and the medical risks associated with carrying a
322 child to term;
323 (d) any relevant information on the possibility of an unborn child's survival at the
324 two-week gestational increments described in Subsection (1)(b);
325 (e) information on the availability of medical assistance benefits for prenatal care,
326 childbirth, and neonatal care;
327 (f) a statement conveying that it is unlawful for any person to coerce a woman to
328 undergo an abortion;
329 (g) a statement conveying that any physician who performs an abortion without
330 obtaining the woman's informed consent or without according her a private medical
331 consultation in accordance with the requirements of this section, may be liable to her for
332 damages in a civil action at law;
333 (h) a statement conveying that the state of Utah prefers childbirth over abortion; and
334 (i) information regarding the legal responsibility of the father to assist in child support,
335 even in instances where he has agreed to pay for an abortion, including a description of the
336 services available through the Office of Recovery Services, within the Department of Human
337 Services, to establish and collect that support.
338 (2) (a) The materials described in Subsection (1) shall be produced and printed in a
339 way that conveys the state's preference for childbirth over abortion.
340 (b) The printed material described in Subsection (1) shall be printed in a typeface large

341 enough to be clearly legible.
342 (3) Every facility in which abortions are performed shall immediately provide the
343 printed informed consent materials and a viewing of or a copy of the informational video
344 described in Subsection (1) to any patient or potential patient prior to the performance of an
345 abortion, unless the patient's attending or referring physician certifies in writing that he
346 reasonably believes that provision of the materials or video to that patient would result in a
347 severely adverse effect on her physical or mental health.
348 (4) The Department of Health shall produce a standardized videotape that may be used
349 statewide, containing all of the information described in Subsection (1), in accordance with the
350 requirements of that subsection and Subsection (2). In preparing the video, the department may
351 summarize and make reference to the printed comprehensive list of geographically indexed
352 names and services described in Subsection (1)(a). The videotape shall, in addition to the
353 information described in Subsection (1), show an ultrasound of the heart beat of an unborn
354 child at three weeks gestational age, at six to eight weeks gestational age, and each month
355 thereafter, until 14 weeks gestational age. That information shall be presented in a truthful,
356 nonmisleading manner designed to convey accurate scientific information, the state's
357 preference for childbirth over abortion, and the positive aspects of adoption.
358 (5) The Department of Health and local health departments shall provide ultrasounds in
359 accordance with the provisions of Subsection 76-7-305 [(1)](2)(b), at no expense to the
360 pregnant woman.
361 (6) The Department of Health shall compile and report the following information
362 annually, preserving physician and patient anonymity:
363 (a) the total amount of informed consent material described in Subsection (1) that was
364 distributed;
365 (b) the number of women who obtained abortions in this state without receiving those
366 materials;
367 (c) the number of statements signed by attending physicians certifying to his opinion
368 regarding adverse effects on the patient under Subsection (3); and
369 (d) any other information pertaining to protecting the informed consent of women
370 seeking abortions.
371 (7) The Department of Health shall annually report to the Health and Human Services

372 Interim Committee regarding the information described in Subsection (6), and provide a copy
373 of the printed materials and the videotape produced in accordance with this section to that
374 committee.
375 Section 6. Section 76-7-315 is amended to read:
376 76-7-315. Exceptions to certain requirements in serious medical emergencies.
377 When due to a serious medical emergency, time does not permit compliance with
378 Section 76-7-302 , [ 76-7-304 ,] 76-7-305 , 76-7-305.5 , or 76-7-310.5 the provisions of those
379 sections do not apply.
380 Section 7. Section 78-14-5 is amended to read:
381 78-14-5. Failure to obtain informed consent -- Proof required of patient --
382 Defenses -- Consent to health care.
383 (1) When a person submits to health care rendered by a health care provider, it shall be
384 presumed that what the health care provider did was either expressly or impliedly authorized to
385 be done. For a patient to recover damages from a health care provider in an action based upon
386 the provider's failure to obtain informed consent, the patient must prove the following:
387 (a) that a provider-patient relationship existed between the patient and health care
388 provider;
389 (b) the health care provider rendered health care to the patient;
390 (c) the patient suffered personal injuries arising out of the health care rendered;
391 (d) the health care rendered carried with it a substantial and significant risk of causing
392 the patient serious harm;
393 (e) the patient was not informed of the substantial and significant risk;
394 (f) a reasonable, prudent person in the patient's position would not have consented to
395 the health care rendered after having been fully informed as to all facts relevant to the decision
396 to give consent. In determining what a reasonable, prudent person in the patient's position
397 would do under the circumstances, the finder of fact shall use the viewpoint of the patient
398 before health care was provided and before the occurrence of any personal injuries alleged to
399 have arisen from said health care; and
400 (g) the unauthorized part of the health care rendered was the proximate cause of
401 personal injuries suffered by the patient.
402 (2) It shall be a defense to any malpractice action against a health care provider based

403 upon alleged failure to obtain informed consent if:
404 (a) the risk of the serious harm which the patient actually suffered was relatively
405 minor;
406 (b) the risk of serious harm to the patient from the health care provider was commonly
407 known to the public;
408 (c) the patient stated, prior to receiving the health care complained of, that he would
409 accept the health care involved regardless of the risk; or that he did not want to be informed of
410 the matters to which he would be entitled to be informed;
411 (d) the health care provider, after considering all of the attendant facts and
412 circumstances, used reasonable discretion as to the manner and extent to which risks were
413 disclosed, if the health care provider reasonably believed that additional disclosures could be
414 expected to have a substantial and adverse effect on the patient's condition; or
415 (e) the patient or his representative executed a written consent which sets forth the
416 nature and purpose of the intended health care and which contains a declaration that the patient
417 accepts the risk of substantial and serious harm, if any, in hopes of obtaining desired beneficial
418 results of health care and which acknowledges that health care providers involved have
419 explained his condition and the proposed health care in a satisfactory manner and that all
420 questions asked about the health care and its attendant risks have been answered in a manner
421 satisfactory to the patient or his representative; such written consent shall be a defense to an
422 action against a health care provider based upon failure to obtain informed consent unless the
423 patient proves that the person giving the consent lacked capacity to consent or shows by clear
424 and convincing proof that the execution of the written consent was induced by the defendant's
425 affirmative acts of fraudulent misrepresentation or fraudulent omission to state material facts.
426 (3) Nothing contained in this act shall be construed to prevent any person 18 years of
427 age or over from refusing to consent to health care for his own person upon personal or
428 religious grounds.
429 (4) [The] Except as provided in Section 76-7-304.5 , the following persons are
430 authorized and empowered to consent to any health care not prohibited by law:
431 (a) any parent, whether an adult or a minor, for [his] the parent's minor child;
432 (b) any married person, for a spouse;
433 (c) any person temporarily standing in loco parentis, whether formally serving or not,

434 for the minor under [his] that person's care and any guardian for [his] the guardian's ward;
435 (d) any person 18 years of age or over for [his or her] that person's parent who is unable
436 by reason of age, physical or mental condition, to provide such consent;
437 (e) any patient 18 years of age or over;
438 (f) any female regardless of age or marital status, when given in connection with her
439 pregnancy or childbirth;
440 (g) in the absence of a parent, any adult for [his] the adult's minor brother or sister; and
441 (h) in the absence of a parent, any grandparent for [his] the grandparent's minor
442 grandchild.
443 (5) No person who in good faith consents or authorizes health care treatment or
444 procedures for another as provided by this act shall be subject to civil liability.