Legislature(2003 - 2004)
05/11/2004 10:38 AM House 030
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HCS CSSB 30(JUD)-ABORTION: INFORMED CONSENT; INFORMATION
CHAIR FRED DYSON called the meeting to order at 10:38 p.m.
All members were present. He moved to use HCS CSSB 30(JUD)
as the working document. There were no objections and it
was so ordered.
CHAIR DYSON said the work done in House Judiciary
significantly improved the bill. An exception for rape and
incest was added. Also, a requirement for information that
a patient would want to know about birth control and family
planning services was added along with information on
prenatal alcohol poisoning and drug exposure. The one
problem area is that the reasonable patient standard
regarding informed consent was changed to a reasonable
physician standard.
It is my perspective that we want to not treat
this procedure any different than the other
informed consent procedures, which say that the
physician health care providers are required to
provide the information that any reasonable
patient would want and need to know. It is my
proposal that we pick some language out of the
Senate version that gets us back to the same
reasonable patient standard that is in existing
law.
MR. JASON HOOLEY, staff to Senator Dyson, pointed out the
language under consideration in the Senate version was in
Sec. 5(b)(1)(c) on page 5, lines 25 - 28; and in the House
version in Sec. 5(b)(2) on page 6, lines 24 - 27.
CHAIR DYSON said the House version has the physician
standard of care.
REPRESENTATIVE COGHILL moved to delete Sec. 5 (b)(2) from
the House Judiciary version and insert Sec. 5 (b)(1)(C)
from the Senate version.
SENATOR SEEKINS said "information about the" would need to
be inserted after (C) to make that language consistent with
the text of the House version.
CHAIR DYSON objected and offered Amendment 1 for
clarification, saying it would read:
(2) information about the nature and risk of
undergoing or not undergoing the proposed
procedure that a reasonable patient would
consider material to making a voluntary and
informed decision of whether to undergo the
procedure;
REPRESENTATIVE COGHILL said that language was okay with
him.
CHAIR DYSON related that the reasonable patient standard is
standard in the rest of state law; he thought
Representative Cissna should worry about a doctor slanting
informed consent information in one direction and the
patient in another, but he thought the reasonable patient
standard would protect both.
REPRESENTATIVE CISSNA responded that she comes from a
different point of view on this and she felt uncomfortable
with the changes. "It was a fragile balance that we had
passing this one. It took us time. I think this is going to
take us a lot more time."
MR. HOOLEY said the Department of Law (DOL) informed him
that the current informed consent statutes in Title 9 have
been interpreted in case law to reflect a reasonable
patient standard.
CHAIR DYSON said that he felt the same way.
REPRESENTATIVE CISSNA said:
I think this is an assault on a woman and our
ability to respect her autonomy. Yes, we are
putting the doctor in harm's way here and we're
asking something of women that we aren't asking
of a woman when she has a breast removed or when
she does anything else.
CHAIR DYSON countered that he thought using the reasonable
patient standard empowers women and all other patients
because it is a consistent standard and says that women
have the right to the information and are capable of making
those decisions without the doctor filtering it.
SENATOR SEEKINS said that's how he looks at it, too. In
this case, if the doctor or health care provider gets to
determine what information is appropriate for the facts and
circumstances for the woman, he can predetermine what kind
of information is presented.
SENATOR LINCOLN asked who decides what material will be
presented by the doctor to his patient.
CHAIR DYSON explained that ultimately this bill equates to
a policy decision to significantly add to the list of
information that is presented to the patient. "I approve of
everything that was added."
The department produces scores of pamphlets and goes
through a fairly elaborate process, sometimes hiring
experts and a peer review. If the information they provide
is off track, it is the legislature's job to herd them
back.
SENATOR LINCOLN said she wanted to hear from the department
on this part of the issue.
MS. SHERRY HILL, Department of Health and Social Services
(DHSS), said the House version has physicians prepare that
information; the Senate version has someone assigned by the
Medical Board.
CHAIR DYSON said the question before them is who will
prepare information and what will the criteria be that the
department uses for preparing it.
CHAIR DYSON asked if health information that is presented
to the public is subject to some kind of peer review.
MS. HILL replied yes, the department didn't want to make
any assumptions and that it looks to medical professionals
who have established such information on a nationwide
basis.
SENATOR LINCOLN asked who would determine what was going to
be presented to the women.
MR. HOOLEY responded that the Division of Public Health
wrote a letter saying that its protocols for developing
health information include a peer review. It has external
contracts with a variety of medical professionals on every
document that it produces. The department's own standards
for developing the information are developed by a team of
medical personnel.
REPRESENTATIVE CISSNA said she found it hard to believe
that they are talking about adults who are adult enough to
have a pregnancy.
They are not a member of a police state that
decides every move in their lives; and they
happen to be a woman. But the second they are a
woman in a decision like this, all of a sudden
the state is moving in here. The state is putting
a huge burden on a doctor in this situation that
says that he's got to put this woman through
paces.... I worked in publications for over 30
years. You can't do unbiased.... I think the
House version is a better standard.
CHAIR DYSON responded that he thought she just made an
eloquent case for the Senate version that would keep
existing law on informed consent. The House version allows
the medical professional to filter the information.
SENATOR SEEKINS agreed with Representative Cissna that the
person should be the focus here. The House version allows a
physician's staff member to determine what she thinks is in
the best interest of this particular person as far as the
information regarding the nature and risks of the
procedure. The Senate version allows the woman to make up
her own mind after being given all the information that's
available. "I think the Senate version of this does exactly
that...."
REPRESENTATIVE CISSNA responded to both Senator Seekins and
Chair Dyson:
Each of you are assuming the woman comes into the
office not having thought about this and getting
all her information in this office. My point of
view is that is not the case. The woman has gone
through - and I've talked to many women who have
been in this process - that is not to say that I
even understand all of their decisions, because
how could I? I'm not them. At the same time they
have gone through days or weeks of absolutely
turning their lives inside out and weighing
enormous amounts of things and that is the point
in a person's life when they do look for sources
of information. We, the state, in this are saying
they get into this office and they were born and
we're going to set up an information set for them
to have. That's presumptuous on our part. The
woman has the right to seek that relationship
with the physician that is going to be concerned
about the medical part of this. That is why she
goes to the physician....
REPRESENTATIVE COGHILL asked for the vote.
CHAIR DYSON restated the motion to substitute the Senate
language (current law) into the House Judiciary version.
REPRESENTATIVE CISSNA objected. Representatives Coghill and
Representative Dahlstrom voted yea; Representative Cissna
voted nay; Senators Seekins and Dyson voted yea; Senator
Lincoln voted nay; and Amendment 1 was adopted.
CHAIR DYSON asked Mr. Hooley to direct the committee to the
State Medical Board's review of the material.
MR. HOOLEY replied the language is referenced seven times
in the House version; the Senate version has no
corresponding language.
CHAIR DYSON said he thought the review was fine, but the
information has to be unbiased and accurate. Two problems
from his perspective are that when the board gets into
appropriateness, that is the legislature's purview. He,
therefore, moved to delete "appropriateness".
Second, the House version did not elaborate on what happens
when the Medical Board's expert disapproves of what the
department has produced. The board has very strongly stated
that it does not want to assume that responsibility and the
department does not feel it is appropriate.
MS. HILL added that the Medical Board has a different
purview than the medical experts the department uses to
review its publications.
SENATOR SEEKINS said that he understands the language to
mean that obstetrical and gynecological specialists would
be designated by the Medical Board to do the review. It
could enlist people who are known for their unbiased
scientific information.
CHAIR DYSON and SENATOR SEEKINS both said they would not
make a motion to delete the Medical Board and its
designee's review language.
SENATOR LINCOLN concurred with Senator Seekins'
interpretation. She didn't want the department to have to
do it.
CHAIR DYSON said he wanted a woman to have all the
information to make her decision, not just what somebody
thinks is appropriate. There is also the separation of
powers issue. He moved to delete "and appropriateness" as
is grammatically correct from all the passages that talk
about the State Medical Board and its designee.
SENATOR LINCOLN asked him to count how many places it
appeared.
REPRESENTATIVE COGHILL said page 1, line 14; page 2, line
6; page 3, line 16, 21, 28; and page 4, line 8. There were
no objections and Amendment 2 was adopted.
TAPE 04-1, SIDE B
CHAIR DYSON said the next issue is whether the board has to
review and approve information.
REPRESENTATIVE CISSNA pointed out that language in both
bills referred to "reviewed and approved" and that was the
will of the body.
CHAIR DYSON asked if the Medical Board would have to
convene specially to consider the report.
SENATOR SEEKINS opined:
I don't think the Medical Board has to approve
the report unless they are the ones who are doing
it. If they have got some other designee, that
person submits it without having to go through
the approval process with the Medical Board.
MS. HILL said that's how the department was interpreting
it, too.
SENATOR LINCOLN said she thought the State Medical Board
meets quarterly.
MS. HILL said it would be appropriate for the designated
group to set a standard for the approval processes.
REPRESENTATIVE COGHILL agreed that somewhere along the line
medical accuracy has to be a standard that is approved. He
supported asking recognized authorities to bring that issue
to the Medical Board.
CHAIR DYSON recapped that the House Judiciary version adds
review by a group that is not subject to the department's
contracting or selection process and, therefore, it could
be argued that it has its biases, but it would be a
different set [of biases].
My guess is that practically speaking, there will
be some angst and consternation with the Medical
Board when it tries to figure out how to deal
with this new responsibility that they are
probably not chartered to do and are not eager
for it.
REPRESENTATIVE COGHILL corrected him by saying that it is
chartered to review this very issue.
CHAIR DYSON stood corrected.
REPRESENTATIVE COGHILL moved to pass CCS SB 30 from
committee with individual recommendations. There were no
objections and it was so ordered. There being no further
business to come before the committee, Chair Dyson
adjourned the meeting at 4:30 p.m.
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