HOUSE OF REPRESENTATIVES

150th GENERAL ASSEMBLY

HOUSE BILL NO. 239

AN ACT TO AMEND TITLE 16 OF THE DELAWARE CODE RELATING TO INFORMED CONSENT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 12, Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

Subchapter III. Medical Examinations

§ 1220. Definitions.

As used in this subchapter

(a) “Health-care practitioner” means as defined in §701 of Title 16.

(b) “Health-care professional” means as defined in §701 of Title 16.

(c) “Informed consent” means the signing of a consent form by the patient or a person authorized to make health care decision on behalf of the patient that satisfies all of the following conditions:

(1) Is written in plain language.

(2) Is dated.

(3) Includes a description of the procedure to be performed.

(4) States if there will be a student or resident that will perform or be present at the patient’s examination.

§1221. Pelvic, rectal, or prostate examinations.

(a) A health-care practitioner or a health-care professional may not knowingly perform or supervise the performance of a pelvic, rectal, or prostate examination on a patient who is anesthetized or unconscious unless one of the following applies:

(1) The patient or the person authorized to make health care decisions for the patient has given informed consent to the examination.

(2) The examination is necessary for diagnostic or treatment purposes.

(3) An emergency exists and it and it is impracticable to obtain consent and the examination is necessary for diagnostic or treatment purposes.

(4) A court of competent jurisdiction orders the performance of the examination for the collection of evidence and such order must be issued in compliance with all of the following provisions:

a. The court must find that there is a compelling need for such examination, which cannot be accommodated by other means. In assessing compelling need, the court shall weigh the need for the examination and the disclosure of the results against the privacy interest of the individual to be examined.

b. Pleadings pertaining to the ordering of the examination shall substitute a pseudonym for the true name of the subject of the examination. The true name shall be communicated confidentially to the court and kept under seal of the court.

c. Before granting such order, the court shall provide the individual sought to be examined with notice and a reasonable opportunity to participate in the proceedings if the individual is not already a party.

d. Court proceedings as to disclosure of examination results so ordered shall be conducted in camera unless the subject of the test agrees to a hearing in open court or unless the court determines that a public hearing is necessary to the proper administration of justice.

(b) A health-care practitioner or health-care professional shall notify the patient as soon as reasonably practical that an examination was performed pursuant to § 1221(a)(3) and (4).

(c) Any health-care practitioner or health-care professional who violates §1221(a) is subject to discipline by the appropriate professional licensing board.

SYNOPSIS

This Act prohibits a pelvic, rectal, or prostate examination by a health care practitioner or professional on an individual who is anesthetized or unconscious. This Act provides exceptions and they are if informed consent is provided, the examination is for diagnostic or treatment purposes, an emergency exists and the examination is necessary, or the examination is ordered by a court. The Act also defines informed consent as a signing of a consent form that is written in plain language, is dated, includes a description of the procedure to be performed and states that a medical student or resident may perform or be present during the examination. Finally, this Act provides that a health-care practitioner or professional who violates the section may be subject to discipline by the appropriate professional licensing board.