UPDATED @ 8:31 PM EST
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Here is the second part of the proposed-to-be-amended provisions -- New York State Senate Bill No. 4779-B -- and technically (though this is far from clear), it would seem to require a practicioner to determine that a minor has been exposed to an STD, before treating (including HPV vaccinations), without parental notice or consent:. . . .2. (A) A [licensed physician, or in a hospital, a staff physician,]HEALTH CARE PRACTITIONER may diagnose, treat or prescribe TREATMENT FOR A SEXUALLY TRANSMISSIBLE DISEASE for a person under the age of [twenty-one] EIGHTEEN years without the consent or knowledge of the parents or [guardian] GUARDIANS of said person, where such person is infected with a sexually transmissible disease, or has been exposed to infection with a sexually transmissible disease. . . .
(B) HEALTH CARE PRACTITIONER MAY PROVIDE HEALTH CARE RELATED TO THE PREVENTION OF A SEXUALLY TRANSMISSIBLE DISEASE, INCLUDING ADMINISTERING VACCINES, TO A PERSON UNDER THE AGE OF EIGHTEEN YEARS WITHOUT THE CONSENT OR KNOWLEDGE OF THE PARENTS OR GUARDIANS OF SUCH PERSON, PROVIDED THAT THE PERSON HAS CAPACITY TO CONSENT TO THE CARE, WITHOUT REGARD TO THE PERSON'S AGE, AND THE PERSON CONSENTS.
(C) ANY RELEASE OF PATIENT INFORMATION REGARDING VACCINES PROVIDED UNDER THIS SECTION SHALL BE CONSISTENT WITH SECTIONS SEVENTEEN AND EIGHTEEN OF THIS CHAPTER AND OTHER APPLICABLE LAWS AND REGULATIONS. . . .
ALLCAPS denote proposed new language; [brackets] denote deletions. Once again, among the bill's manifold arguable Constitutional infirmities is the notion that someone may be "treated" -- via a vaccine -- when under age 18, without notice, or consent of the parent or guardian. Note that vaccines will not cure a disease, so they do not "treat" them; at best, they prevent a disease. At a minimum, for this provision to pass muster, it will need to clearly define concepts like "exposed to infection" (with significant scientific specificity, otherwise it will liekly be deemed too vauge to allow the summary termination of a fundamental parental right), and (as noted in greater detail below) "has capacity to consent, regardless of age".
Net/net -- this will be interesting to watch develop, but I don't foresee these provisions ever becoming law in New York -- not in this grossly-misshapen and largely-unconstitutional form, at least.
[Finally, a sincere thank-you goes to Jim Edwards, at BNet Pharma, for asking after this provision, and thus helping me to realize that two sections are proposed to be amended in New York. I was clearly going too fast, at first.]
END, UPDATED PORTION
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If you, or a loved one, resides in New York, this particular proposed bill may be worthy of a few firmly worded phonecalls. As presently crafted, NY Senate Bill No. A778, "An act to amend the public health law, in relation to requiring immunization against human papillomavirus (HPV)" would purport to allow Gardasil vaccinations of minors, without parental notice or consent -- if a health care practicioner believes that the minor has the capacity to execute an informed consent. I think this is an unwise, and uneeded, change in law. [Note that none of the standards by which the practicioner is to make that assessment are defined in the proposed measure -- a potentially fatal flaw, from a constitutional point of view.] Even so, I think New York residents should make their feelings well-known, on this important health care and privacy policy matter.
Here's the operative language -- drop a comment in my box if you need contact details for your local New York legislator. This measure is pending in the New York state Senate:
. . . .This section also provides that a health care practitioner may provide health care related to the prevention of a sexually transmissible disease, including administering vaccines, to a person under age eighteen without the consent or knowledge of his or her parents or guardians, provided such person has capacity to, consent to the care, without regard to the person's age, and the-person consents. The section provides further that any release of patient information regarding vaccines provided under this section shall be consistent with sections 17 and 18 of the public health law and other applicable laws and regulations. . . .
Sincere Hat Tip to Salmon.
2 comments:
Forgive me in my legal naivity but I would think that 2.(A) and 2.(B) are separate and that vaccination would not be dependent on being exposed to an STD.
Salmon
Hey Salmon -- you make a fair point.
I think (but I haven't tracked down the legislative history) the changes proposed via Sub-sections (A), (B) and (C) are intended to work harmoniously -- however, as I've pointed out already, the drafting leaves much to be desired.
I think that -- above all else -- is the core problem with the bill.
There are essentially no defined terms, so any of the phrases could mean an almost unlimited number of things, to different practicioners.
Normally, one would specifically make the section (B) authority dependent upon an event occuring under section (A), explicitly.
That they did not do.
However, I think most courts, and therefore most legislators (whose job it is to write laws) would know that a pre-emptive taking of a parent's fundamental privacy and liberty right -- that of deciding whether to give an ENTIRELY elective vaccine (a choice not without some real risks, risks a 15 year old is likely very poorly-equipped to assess) to a minor child -- would be unconstitutional, without some form of serious, imminent threat to the child's safety.
So, I think (though the matter is far from clear, here -- and calls are thus still urgently needed, in NY) the only possible way to read the proposed changes as constitutional -- is to presume that the NON-parental consented vaccination against HPV may only be administered AFTER some showing that the child has been "exposed".
The devil of it all -- of course -- is that some practicioners may declare that any sexually active teenager is presently "exposed"; or even that any teenager who admits to kissing(!), with a boy- or girl-friend, is "exposed". And that would encompass perhaps 70 percent of all public high schoolers in New York.
Or even that any non-virgin is "exposed" -- regardless of whether the child is abstinent, at present. I could go on and on, but I know you get the drift of this.
This is a terrible piece of legislation -- and should be spiked. Even if the intentions are noble ("protecting kids, from one another"), it is an exemplar of the adage "the road to hell is thus paved. . . ."
Again, thanks for the great alert!
Namaste
PS: perhaps the State Senators will be unable to rech upstate today -- thus no session. We'll see.
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