SENATE, No. 763

STATE OF NEW JERSEY

INTRODUCED FEBRUARY 15, 1996

By Senator CONNORS

An Act concerning health care workers and supplementing chapter 5C of Title 26 of the Revised Statutes.

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

    1. The Legislature finds and declares that:

    a. There is widespread public concern about the possibility of accidental HIV transmission occurring as a result of a medical, surgical or dental procedure, which was highlighted by the documented case of a dentist practicing in Florida who was determined to have infected five patients with HIV.

    b. Because AIDS is deadly and contagious, a patient should be informed if a health care worker is HIV infected, rather than relying for safety on the worker's use of universal precautions recommended by the federal Centers for Disease Control, or CDC, against HIV infection. It is arguable that it is unrealistic to expect health care workers to maintain the highest level of vigilance continuously by always using universal precautions; surveys indicate that many health care workers do not because the precautions take extra time and some may feel that they interfere with the provision of efficient medical care. In addition, there have been reports that surgeons and dentists tear a glove in about one of every four cases and generally sustain a significant injury in one of every 40 cases. Also, with the progression of HIV infection and the onset of AIDS, a health care worker's physical or mental competence could in some cases interfere with the ability to provide quality care.

    c. According to a policy statement adopted by the American Medical Association in 1991: "Physicians who are HIV positive have an ethical obligation not to engage in any professional activity which has an identifiable risk of transmission of the infection to the patient. . . . In cases of uncertainty about the risks to patient health, the medical profession, as a matter of medical ethics, should err on the side of protecting patients."

    d. The CDC adopted guidelines in July 1991 on preventing the transmission of HIV and HBV, the hepatitis B virus, in health care settings which, in part, called for the identification of exposure-prone procedures by medical, surgical and dental organizations and institutions at which medical, surgical and dental procedures are preformed; awareness by health care workers of their HIV and HBV status; and limits on the performance of exposure-prone procedures by HIV and HBV-infected workers, including notification to prospective patients before the performance of such procedures.

    e. Notwithstanding these considerations to the contrary, the Department of Health has developed a policy on HIV-infected health care workers for submission to the CDC, as required of all the states by federal law, which refutes the recommendation contained in the CDC guidelines of July 1991 that an HIV-infected health care worker should notify a prospective patient before an exposure-prone procedure is performed on that patient. It is, therefore, incumbent upon the Legislature to take action to ensure the public's right to know on this issue.

    2. As used in this act:

    "AIDS" means acquired immune deficiency syndrome as defined by the Centers for Disease Control of the United States Public Health Service.

    "Commissioner" means the Commissioner of Health.

    "Health care worker" means a physician, dentist, nurse or other person as determined by the commissioner whose professional duties involve direct participation in the performance of exposure-prone procedures.

    "HBV" means the virus identified as a probable causative agent of hepatitis B.

    "HIV" means the human immunodeficiency virus or any other related virus identified as a probable causative agent of AIDS.

    "Exposure-prone procedure" means a medical, surgical or dental procedure which poses a risk of transmission of HIV or HBV from a health care worker to a patient, to be determined by the commissioner in consultation with the State Board of Medical Examiners, the New Jersey State Board of Dentistry and the New Jersey Board of Nursing.

    3. a. A health care worker who has been diagnosed as being infected with HIV or HBV shall inform a patient of his infection and obtain written informed consent from the patient prior to participating in an exposure-prone procedure on that patient, according to guidelines established by the commissioner, in consultation with the State Board of Medical Examiners, the New Jersey State Board of Dentistry and the New Jersey Board of Nursing.

    b. If the patient is legally incompetent, the health care worker shall inform an authorized representative of the patient of his HIV or HBV infection and obtain the written informed consent from the authorized representative.

    c. A copy of the written informed consent shall be included in the medical or dental record of the patient.

    d. Written informed consent shall consist of a statement, on a form or in a manner to be determined by the commissioner, signed by the patient or by an authorized representative of the patient, which acknowledges that notification has been provided to the patient by the health care worker that the health care worker has been diagnosed as having HIV or HBV infection, and that the patient or authorized representative of the patient consents to the health care worker's participation in the procedure.

    4. The commissioner shall take such actions as are necessary to notify health care workers about the provisions of this act and is entitled to receive the cooperation of the State Board of Medical Examiners, the New Jersey State Board of Dentistry and the New Jersey Board of Nursing, in addition to any other agency of State, county or local government, for this purpose.

    5. A health care worker who knowingly fails to comply with the provisions of this act is a disorderly person.

    6. The commissioner, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations to effectuate the purposes of this act.

    7. This act shall take effect on the 60th day after enactment, except that the commissioner shall take such actions prior to the effective date as are necessary to implement the provisions of this act.

STATEMENT

    This bill requires that a health care worker, such as a physician, dentist or nurse, who has been diagnosed as being infected with HIV (the virus which is believed to cause AIDS) or HBV (the hepatitis B virus) inform the patient of his HIV or HBV infection and obtain written informed consent from a patient prior to participating in an invasive procedure on that patient, according to guidelines established by the Commissioner of Health in consultation with the Board of Medical Examiners, the Board of Dentistry and the Board of Nursing.

    The bill provides that if the patient is legally incompetent, the health care worker shall inform an authorized representative of the patient of his HIV or HBV infection and obtain the written informed consent from the authorized representative. A copy of the written informed consent shall be included in the medical or dental record of the patient.

    The bill stipulates that written informed consent shall consist of a statement, signed by the patient or by an authorized representative of the patient, which acknowledges that notification has been provided to the patient by the health care worker that the latter has been diagnosed as having HIV or HBV infection, and that the patient or authorized representative of the patient consents to the health care worker's participation in the procedure.

    The bill further provides that the Commissioner of Health shall take such actions as are necessary to notify health care workers about the provisions of the bill and is entitled to receive the cooperation of the Board of Medical Examiners, the Board of Dentistry and the Board of Nursing, in addition to any other agency of State, county or local government, for this purpose.

    Finally, the bill provides that a health care worker who knowingly fails to comply with the provisions of the bill is a disorderly person (which is punishable by a fine of up to $1,000 or imprisonment for up to six months, or both).

    The rationale for this bill is supported by an April 1991 decision by Mercer County Superior Court Judge Philip S. Carchman which held that a physician who tests positive for HIV should advise a patient of that fact and should secure informed consent from a patient before performing surgery, on the grounds that the risk to a patient of being exposed to HIV as a result of the performance of an invasive procedure is so devastating as to require informed consent by the patient.

    In addition, the State Board of Medical Examiners has adopted a policy statement (as amended June 10, 1992), as "an advisory to its licensees to guide professional behavior," which recommends that an HIV-infected physician "either abstain from performing invasive procedures which pose an identifiable risk of transmission or disclose their status to the patient and proceed only with informed consent."

    Finally, the American Medical Association adopted a policy statement in 1991 which contends that: "HIV infected physicians should either abstain from performing invasive procedures which pose an identifiable risk of transmission or disclose their sero-positive status prior to performing a procedure and proceed only if there is informed consent."

Requires health care workers infected with HIV or hepatitis B virus to obtain informed consent from their patients before performing exposure-prone procedures.