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Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude
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Michigan

House Bill 5158 (2001)

This bill supersedes HB 5290, which died in committee.  Check the status of this bill at the Michigan Legislature

Introduced on October 9, 2001 by Reps. Ehardt, Raczkowski, Vander Veen, Koetje, Rocca, Birkholz, Tabor, Sanborn, Middaugh, Patterson, Pumford, Mans, DeVuyst, Cassis, Bisbee, Pestka, Sheltrown, O'Neil, Neumann, Callahan, Wojno, Bishop, Richardville, Basham, Drolet, Cameron Brown, Faunce, George, Kowall, Van Woerkom, Stamas, Jansen, Voorhees, Hart, Hager, Allen, Pappageorge, Jelinek, Newell, DeRossett, Howell, Vander Roest and Kuipers and referred to the Committee on Health Policy.

A bill to provide for certain health care professionals and providers to object to participating in certain procedures under certain circumstances; to provide for protection from certain liability; and to provide for penalties and remedies.


THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1. This act shall be known and may be cited as the "health care conscience clause act".

Sec. 3. As used in this act:

(a) "Emergency patient" means an individual whose physicalor mental condition is such that, in the reasonable medical judgment of an attending physician or medical director, the individual is, or may reasonably be suspected or known to be, in imminent danger of loss of life or of significant health impairment.

(b) "Health facility" means a health facility or agency asdefined in section 20106 of the public health code, 1978 PA 368,00141'01 MCL 333.20106, a private physician office, or a public or private institution, teaching institution, pharmacy, corporation, partnership, or sole proprietorship that provides a health care service to an individual.

(c) "Health care provider" means a person licensed or registered under article 15 of the public health code, 1978 PA 368,MCL 333.16101 to 333.18838, a student of a health facility, orother person employed by a health care institution who either directly or indirectly participates in a health care service.

(d) "Health care service" means an action intended to maintain, improve, or restore the health or physical comfort of anindividual.

(e) "Life threatening condition" means a condition that inthe reasonable medical judgment of an attending physician or medical director will result in a patient's death.

(f) "Medical director" means that term as defined in section20906.

(g) "Participate or participating" means, at a minimum, tocounsel, refer, perform, administer, prescribe, dispense, treat,withhold, withdraw, diagnose, test, evaluate, train, research, prepare, or provide material or physical assistance in a healthcare service.

Sec. 5. (1) Pursuant to this section, a health care provider may assert as a matter of conscience, on an ethical, moral,or religious ground, an objection to participating in a healthcare service.00141'01

(2) A health care provider shall not assert an objection described in subsection (1) under 1 or more of the following circumstances:

(a) The health care provider has had 5 or more disciplinaryactions taken against him or her by a health facility within aconsecutive 5-year period, 3 of which are related to the health service to which the objection applies, that result in a changeof employment status or that adversely affect the health careprovider's clinical privileges for a period of more than 15 days.

(b) The health care provider has had 3 or more complaints issued by the department of consumer and industry services against him or her within a consecutive 5-year period, 2 of whichare related to the health service to which the objection applies.

(c) The objection to participating in the health care service is based on the patient's or a group of patients' race, religion, color, national origin, sex, age, disability, disease orother medical condition, marital status, economic status, orsexual preference.

(d) The objection is based on a disagreement with the clinical judgment of another health care provider regarding the medical appropriateness of a health care service for a specificpatient if the patient has consented to the provision of the health care service.

(3) If a health care provider is not employed on the effective date of this act, and if the health care provider hasan objection described in subsection (1), the health careprovider, upon being offered employment, shall notify the employer at that time in writing of the objection. Except as otherwise provided in subsection (5), a health care provider whois employed on the effective date of this act shall notify his orher employer in writing of an objection described in subsection(1) as soon as practicable after learning that he or she may haveto participate in the health care service to which the objectionapplies or at any other time that the health care provider considers necessary to submit an objection described in subsection(1).

(4) An employer shall retain a health care provider's written objection filed under subsection (3) for the duration of thehealth care provider's employment. The written objection isvalid for the duration of the health care provider's employmentor until rescinded by the health care provider in writing.

(5) If a health care provider has not submitted a writtenobjection under subsection (3) before being asked to participatein a health care service, the health care provider shall notifythe employer in writing if he or she has an objection to participating in the health care service described in subsection (1)within 24 hours after receiving notice that the health care service has been scheduled. If a health care provider does notnotify the employer of the objection within 24 hours after receiving notice that the health care service has been scheduled,the employer shall make a reasonable effort to exclude the healthcare provider from participating in the health care service or tofind a replacement for the health care provider if the healthcare provider still claims to have, either orally or in writing,an objection to participating in the health care service asdescribed in subsection (1).

(6) If a health care provider employee has submitted an objection to participating in a health care service under subsection (3) or (5), and if 5% or more of the health care provider'sdaily or weekly duties consist of participating in that healthcare service, the employer may give the health care provideremployee not less than 6 months' notice of the termination of theemployee's employment. This subsection does not apply to an employer who employs 5 or fewer health care providers.

(7) A health care provider's objection to participating in ahealth care service as described in subsection (1) shall not bethe basis for 1 or more of the following:

(a) Civil liability to another person.

(b) Criminal action.

(c) Except as otherwise provided in section 7, refusal of staff privileges at a health facility.

(d) Administrative or licensure action.

(e) Except as otherwise provided in subsection (6), an involuntary change in terms or conditions of employment or other disciplinary action, including, but not limited to, termination of employment, by the health care provider's employer.

(8) This section does not relieve a health care provider from a duty that exists under another statute or other lawpertaining to current standards of acceptable health care practice and procedure to inform a patient of the patient'scondition, prognosis, and risks of receiving health care servicesfor the condition. However, this subsection does not impose aduty on a health care provider to counsel, recommend, or refer ahealth care service to which the health care provider has asserted an objection as described in subsection (1).

Sec. 7. (1) Pursuant to this section, a health facility mayassert as a matter of conscience, on an ethical, moral, or religious ground, an objection to providing a health care service.

(2) A health facility shall not assert an objection described in subsection (1) under either of the following circumstances:

(a) If the objection is based on a patient's or a group ofpatients' race, religion, color, national origin, sex, age, disability, disease or other medical condition, marital status, economic status, or sexual preference.

(b) The objection is based on a disagreement with a healthcare provider employed by, under contract to, or granted privileges by the health facility regarding the medical appropriateness of a health care service for a specific patient if thepatient has consented to the provision of the health care service.

(3) A health facility shall provide notice of an objectiondescribed in subsection (1) to providing a health care service through written public notice or personally in writing at thetime an individual seeks to obtain that health care service fromthe health facility.

(4) A health facility's objection as described in subsection(1) to providing a health care service shall not be a basis for 1or more of the following:

(a) Civil, criminal, or administrative liability.

(b) Eligibility discrimination against the health facilityin a grant, contract, or program, where providing the health careservice is not expressly required as a condition of eligibilityfor the grant, contract, or program.

(5) A person including, but not limited to, a governmentalagency shall not refuse employment or staff privileges to a health care provider or impose an involuntary change in terms orconditions of employment or other disciplinary action, including,but not limited to, termination of employment, on a health careprovider who has previously asserted, or is presently asserting,an objection to participating in a health care service under section 5, unless participation in that health care service is indicated as a part of the normal course of duties in the posting ofthe availability of the position for employment or staff privileges and except as otherwise provided in section 5(6).

(6) A medical school or other institution for the educationor training of a health care provider shall not refuse admissionto an individual or penalize that individual because the individual has filed in writing with the medical school or other institution an objection to participating in a health care service asdescribed in section 5(1).

(7) Except as otherwise provided in this section and section5, a civil action for damages or reinstatement of employment, orboth, may be brought against a person including, but not limitedto, a governmental agency, health facility, or other employer forpenalizing or discriminating against a health care provider, including, but not limited to, penalizing or discriminating in hiring, promotion, transfer, a term or condition of employment,licensing, or granting of staff privileges or appointments, because that health care provider has filed an objection to participating in a health care service under section 5(3) or (5). Civil damages may be awarded equal to 3 times the amount ofproven damages and attorney fees. A civil action filed underthis subsection may include a petition for injunctive relief.

Sec. 9. A person who violates this act is responsible for astate civil infraction and may be ordered to pay a civil fine ofnot more than $1,000.00 for each day the violation continues or acivil fine of not more than $1,000.00 for each occurrence.

 

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