A BILL FOR AN ACT ENTITLED: "AN ACT generally REVISING LAWS RELATED TO THE RIGHT OF PARENTS TO DIRECT, CONTROL, AND REMAIN INFORMED ABOUT A MINOR CHILD'S health care; RESTRICTING THE ABILITY OF A MINOR TO CONSENT TO HEALTH SERVICES; MANDATING THE RELEASE OF RECORDS AND INFORMATION ABOUT A MINOR'S MEDICAL TREATMENT TO THE minor's PARENTS; LIMITING THE ABILITY OF THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES and local Boards of health to remove minor children from the home for the purpose of quarantine and isolation; Providing a process for appeal of the decision to terminate Life-sustaining treatment of a minor child; and AMENDING SECTIONS 41-1-402, 41-1-403, 41-1-404, 41-7-102, 50-1-204, AND 50-2-118, MCA."
WHEREAS, parents who have legal custody of any minor child or children have the fundamental right and duty to make decisions concerning their health care without unnecessary interference or restriction; and
WHEREAS, the decision of whether or not to continue life-sustaining treatment for a minor child is a desperate and difficult decision for a parent, and the consequences of the decision is an interest far more precious than any property right and equals or exceeds the detriment of criminal sanctions; and
WHEREAS, while government has a strong interest in controlling communicable diseases, especially in an epidemic or pandemic, this interest does not eliminate a parent's right and interest in decisionmaking regarding the quarantine and isolation of minor children.
"41-1-402. Validity of consent of minor for health services. (1) Except as provided in subsections (2) through (5) and unless parental rights have been terminated, a health professional, health care facility, or other person or entity shall obtain written or oral consent from the parent, custodian, or guardian prior to performing health services on a minor, including but not limited to:
(2) The consent to the provision of health services and to control access to protected health care information by a health care facility or to the performance of health services by a health professional may be given by a minor who professes or is found to meet any of the following descriptions:
(c) a minor who professes or is found to be pregnant or afflicted with any reportable communicable disease, including a sexually transmitted disease, or drug and substance abuse, including alcohol. This self-consent applies only to the prevention, diagnosis, and treatment of those conditions specified in this subsection. The self-consent in the case of pregnancy, a sexually transmitted disease, or drug and substance abuse also obliges the health professional, if the health professional accepts the responsibility for treatment, to counsel the minor or to refer the minor to another health professional for counseling.
(d) a minor who needs emergency care, including transfusions, without which the minor's health will be jeopardized. If emergency care is rendered, the parent, parents, or legal guardian must be informed as soon as practical except under the circumstances mentioned in this subsection (2).
(3) Subsection (1) does not apply when it has been determined by a physician that an emergency exists and that it is necessary to perform health services as described in subsection (1) for the treatment of an injury or drug abuse, to save the minor's life, to prevent serious injury, or when a parent, custodian, or guardian cannot be contacted after a reasonably diligent effort.
"41-1-403. Release of information by health professional. (1) Except with regard to an emancipated minor, a health professional may shall inform the parent, custodian, or guardian of a minor in the circumstances enumerated in 41-1-402(3) of any treatment given or needed when:
(2) Notification or disclosure to the parent, parents, custodian, or legal guardian by the health professional may not constitute libel or slander, a violation of the right of privacy, a violation of the rule of privileged communication, or any other legal basis of liability. If the minor is found not to be pregnant or not afflicted with a sexually transmitted disease or not suffering from drug abuse or substance abuse, including alcohol, then information with respect to any appointment, examination, test, or other health procedure may not be given to the parent, parents, or legal guardian, if they have not already been informed as permitted in this part, without the consent of the minor."
"41-1-404. Financial responsibility of minor. Consent of the minor shall not may be subject to later disaffirmance or revocation because of minority if obtained in violation of 41-1-402. The spouse, parent, parents, custodian, or legal guardian of a consenting minor shall not be is not liable for payment for such a service unless the spouse, parent, parents, custodian, or legal guardian have expressly agreed to pay for such the care. Minors so consenting for such health services shall thereby assume financial responsibility for the cost of said services, except those who are proven unable to pay and who receive the services in public institutions. If the minor is covered by health insurance, payment may be applied for services rendered."
"41-7-102. Policy and guiding principles. (1) It is the policy of the state of Montana to support and preserve the family as the single most powerful influence for ensuring the healthy social development and mental and physical well-being of Montana's children.
(2) Unless parental rights have been terminated, parents of any minor child or children have the fundamental right and duty to make decisions concerning their health care without unnecessary interference or restriction. This includes the right to access and review all medical records of the minor child unless the parent is the subject of an investigation of a crime committed against the minor child and a law enforcement official requests that the information not be released. This also includes the right to be immediately informed of the location in which the child is receiving medical treatment, and the right to visit the child at the facility.
(a) Family support and preservation must be guiding philosophies when the state, state agencies, or agents of the state plan or implement services for children or families. The state shall promote the establishment of a range of services to children and families, including the following components:
(i) supporting families toward healthy development by providing a community network that offers a range of family support services, activities, and programs designed to promote family well-being, with services that include prenatal care, parenting education, parent aides, and visiting nurses; early childhood screening and developmental services; child care; and family recreation;
(ii) assisting vulnerable families before crises emerge by providing specialized services to strengthen and preserve families experiencing problems before they become acute and by providing early intervention and family support services, such as respite care, health and mental health services, and home-based rehabilitation services linked to services in subsection (2)(a)(i); and
(iii) protecting and caring for children in crisis by providing intensive services to protect children who have suffered or are at risk of suffering serious harm from child abuse and neglect, by providing care for children at risk of out-of-home placement for emotional disturbances or behavior problems, and by providing family support services to ensure that reasonable efforts are made to safely maintain children in their own homes or to provide temporary or permanent care for children who are removed from their families. These services include family-based services to avoid removal from the home whenever possible and to provide out-of-home care, reunification services, adoption services, and long-term substitute care.
(b) To maximize resources and establish a range of services driven by the needs of families rather than by a predetermined array of categorical services, the state, state agencies, and agents of the state shall work toward a system of comprehensive and coordinated services to children and families through joint agency planning, joint financing, joint service delivery, common intake and assessment, and other arrangements that promote more effective support for families.
(c) Needed services to children and families should be provided as close as possible to the home community. The state, state agencies, and agents of the state shall encourage community planning and collaboration. State agencies shall cooperate to support collaborative programs.
(3)(4) The family policy objectives described in this section are intended to guide the state's efforts to provide services to children and families. This section may not be construed to require a service or a particular level of service or to grant a right of action to enforce this section or other law."
"50-1-204. Quarantine and isolation measures -- limitations on department authority -- penalties. The (1) Except as provided in subsection (2), the department may adopt and enforce quarantine or isolation measures to prevent the spread of communicable disease.
(3) A person who does not comply with quarantine measures shall, on conviction, be fined not less than $10 or more than $100. Receipts from fines, except justice's court fines, must be deposited in the state general fund."
"50-2-118. Powers and duties of local health officers. In order to carry out the purpose of the public health system, in collaboration with federal, state, and local partners, local health officers or their authorized representatives shall:
(2) take steps to limit contact between people in order to protect the public health from imminent threats, including but not limited to ordering the closure of buildings or facilities where people congregate and canceling events;
NEW SECTION. Section 7. Purpose and definition. (1) The purpose of [sections 7 and 8] is to provide protections and an appeal procedure for a parent with a minor child receiving life-sustaining treatment in the event that the child's licensed health care provider or providers decides to terminate the life-sustaining medical treatment against the parent's wishes.
NEW SECTION. Section 8. Termination of life-sustaining treatment -- preliminary injunction -- right to hearing. (1) If a licensed health care professional determines that it is appropriate to terminate life-sustaining treatment and a parent objects, the life-sustaining treatment must be continued until the following can be completed under reasonably diligent efforts:
NEW SECTION. Section 9. Codification instruction. [Sections 7 and 8] are intended to be codified as a new part in Title 50, chapter 5, and the provisions of Title 50, chapter 5, apply to [sections 7 and 8].
NEW SECTION. Section 10. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
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Prepared by Montana Legislative Services