Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB653 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 ASSEMBLY BILL 653
5	5	November 9, 2023 - Introduced by Representatives WICHGERS, ORTIZ-VELEZ,
6	6	ARMSTRONG, BEHNKE, BODDEN, BRANDTJEN, DONOVAN, MURPHY, MURSAU,
7	7	O'CONNOR, RETTINGER and ROZAR, cosponsored by Senators KNODL and
8	8	BRADLEY. Referred to Committee on Family Law.
9	9	*AUTHORS SUBJECT TO CHANGE*
10	10	AN ACT to create chapter 56 of the statutes; relating to: surrogate
11	11	decision-making.
12	12	Analysis by the Legislative Reference Bureau
13	13	This bill allows for next of kin to be a surrogate decision maker for a patient in
14	14	a hospital who is incapacitated in certain circumstances. Under the bill, when a
15	15	hospital patient is incapacitated, the attending physician for the patient must make
16	16	a reasonable inquiry as to whether the patient has a guardian of the person or an
17	17	advanced planning instrument that applies to the patient's condition. For purposes
18	18	of the bill, either two physicians, a physician and an individual who possesses a
19	19	resident education license, or a physician and a licensed advanced practice clinician,
20	20	who have personally examined the patient, must make the determination and sign
21	21	a statement specifying that the patient is incapacitated.
22	22	Under the bill, if there is no guardian or applicable advanced planning
23	23	instrument, the attending physician must make a reasonable inquiry as to the
24	24	availability of a surrogate decision maker by contacting any family member
25	25	identified in the patient's health care records or other personal effects. The bill
26	26	requires the attending physician to attempt to contact that person by telephone
27	27	within 24 hours after a determination is made that the patient is incapacitated.
28	28	Under the bill, the following individuals, in the following order of priority, may act
29	29	as a surrogate decision maker: 1) the patient's spouse or domestic partner; 2) an adult
30	30	child of the patient or, if there is more than one adult child, a majority of the adult
31	31	children who are available for consultation within a reasonable period of time; 3) a
32	32	parent of the patient; 4) an adult sibling of the patient or, if there is more than one
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37	37	adult sibling, a majority of the patient's adult siblings who are available for
38	38	consultation within a reasonable period of time; 5) a grandparent of the patient; 6)
39	39	an adult grandchild of the patient or, if there is more than one adult grandchild, a
40	40	majority of the patient's adult grandchildren who are available for consultation
41	41	within a reasonable period of time; or 7) a close friend or relative of the patient if the
42	42	person is at least 18 years of age, has maintained sufficient regular contact with the
43	43	patient to be familiar with the patient's activities, health, and beliefs, and has
44	44	exhibited special care and concern for the patient. The bill provides that if a willing
45	45	surrogate decision maker is identified, the attending physician must record the
46	46	surrogate decision maker's information in the patient health records. The bill
47	47	includes provisions for recording a replacement surrogate decision maker if the
48	48	initial person identified becomes unavailable.
49	49	The bill provides that a surrogate decision maker may, if made in accordance
50	50	with certain requirements, make decisions for the patient concerning the patient's
51	51	care, treatment, or therapies without involving the courts or legal process, but a
52	52	surrogate decision maker may not make a decision to continue or to forego
53	53	life-sustaining treatment. Under the bill, any decision made by a surrogate decision
54	54	maker must be recorded in consultation with the attending physician and must
55	55	conform as closely as possible to what the patient would have decided under the
56	56	circumstances, taking into account evidence that includes the patient's personal,
57	57	philosophical, religious, and moral beliefs and ethical values relative to the purpose
58	58	of life, sickness, medical procedures, suffering, and death. The bill requires that the
59	59	surrogate decision maker consult any available evidence of the patient's wishes,
60	60	including an unrevoked advanced planning instrument that is not valid due to a
61	61	technical deficiency or is not applicable to the patient's condition. The bill provides
62	62	that the absence of an advanced planning instrument does not give rise to any
63	63	presumption as to the patient's preferences regarding health care decisions. Under
64	64	the bill, if the patient's wishes are unknown and remain unknown after reasonable
65	65	efforts to discern them, the surrogate decision maker must make decisions on the
66	66	basis of the patient's best interests as determined by the surrogate decision maker.
67	67	In determining the patient's best interests, the surrogate decision maker must
68	68	consult with the patient's primary care provider, if any, and weigh all other
69	69	information, including the views of family and friends, that the surrogate decision
70	70	maker believes the patient would have considered if able to act for himself or herself.
71	71	The bill provides that a surrogate decision maker must exercise reasonable diligence
72	72	and, to the extent feasible under the circumstances, provide to all other individuals
73	73	known to that individual, including certain specific individuals described in the bill,
74	74	notice that the patient is incapacitated and of the right for individuals to apply for
75	75	temporary guardianship.
76	76	The bill provides that health care providers and other persons may rely on any
77	77	decision or direction made by the surrogate decision maker that is not clearly
78	78	contrary to the provisions of the bill to the same extent and with the same effect as
79	79	though it was made by the patient when the patient was not incapacitated. The bill
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84	84	presume that the acts of the surrogate decision maker conform to the requirements
85	85	under the bill.
86	86	Under the bill, a health care provider who relies on and carries out decisions
87	87	made by a surrogate decision maker and acts with due care and in accordance with
88	88	the provisions of the bill may not be subject to any claim, any criminal prosecution,
89	89	or discipline for unprofessional conduct on the basis of the lack of patient consent.
90	90	The bill does not prohibit a claim against a health care provider or facility based on
91	91	negligence relating to the performance of the health care provider's duties or the
92	92	carrying out of any instructions of the surrogate decision maker, nor does the bill
93	93	provide immunity from civil liability if the health care provider or other person has
94	94	actual knowledge either that the surrogate decision maker is not entitled to act at
95	95	the time an action is taken or that any particular action or inaction by the surrogate
96	96	decision maker is otherwise contrary to the requirements under the bill.
97	97	The bill provides that a surrogate decision maker who acts with due care and
98	98	in accordance with the provisions of the bill is not subject to criminal prosecution or
99	99	any claim based on the lack of surrogate authority or based on the surrogate decision
100	100	maker's failure to act. The bill also provides that a surrogate decision maker may
101	101	not be liable for any claim solely because he or she may benefit, has individual or
102	102	conflicting interests in relation to the care and affairs of the patient, or acts in a
103	103	different manner with respect to the patient's care or interests from what the
104	104	surrogate decision maker would do with respect to his or her own care or interests.
105	105	The people of the state of Wisconsin, represented in senate and assembly, do
106	106	enact as follows:
107	107	SECTION 1. Chapter 56 of the statutes is created to read:
108	108	CHAPTER 56
109	109	HEALTH CARE SURROGA TE
110	110	DECISION-MAKING
111	111	56.01 Definitions. In this chapter:
112	112	(1) “Advanced planning instrument” means any of the following:
113	113	(a) A declaration, as defined in s. 154.02 (1).
114	114	(b) A do-not-resuscitate order, as defined in s. 154.17 (2).
115	115	(c) A power of attorney for health care, as defined in s. 155.01 (10).
116	116	(2) “Attending physician” means a physician licensed under subch. II of ch. 448
117	117	who is selected by or assigned to the patient and who has primary responsibility for
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130	130	SECTION 1 ASSEMBLY BILL 653
131	131	treatment and care of the patient. If more than one physician shares primary
132	132	responsibility for treatment and care of the patient, any of those physicians may act
133	133	as the attending physician under this chapter.
134	134	(3) “Guardian of the person” has the meaning given in s. 54.01 (12).
135	135	(4) “Incapacitated” means unable to receive and evaluate information
136	136	effectively or to communicate decisions to such an extent that the individual lacks
137	137	the capacity to manage his or her health care decisions, including decisions about his
138	138	or her hospital and post-hospital care.
139	139	(5) “Patient health care records” has the meaning given in s. 146.81 (4).
140	140	56.03 Applicability. (1) Except as otherwise provided in this section, this
141	141	chapter applies to a patient in a hospital who is incapacitated. The desires of a
142	142	patient who is not incapacitated supersede any surrogate decision-making
143	143	authority under this chapter. A determination that a patient is incapacitated for
144	144	purposes of this chapter shall be made by 2 physicians, as defined in s. 448.01 (5),
145	145	by one physician and one individual who possesses a resident education license
146	146	issued under s. 448.04 (1) (bm), or by one physician and one licensed advanced
147	147	practice clinician, as defined in s. 155.01 (1g), who personally examine the patient
148	148	and sign a statement specifying that the patient is incapacitated. Mere old age,
149	149	eccentricity, or physical disability, either singly or together, are insufficient to make
150	150	a finding that a patient is incapacitated. Neither of the individuals who make a
151	151	determination that a patient is incapacitated may be a relative, as defined in s.
152	152	242.01 (11), of the patient or have knowledge that he or she is entitled to or has a
153	153	claim on any portion of the patient's estate. A copy of the statement shall be included
154	154	in the patient's health care records.
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181	181	SECTION 1
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183	183	(2) This chapter does not apply to patients who have in effect any of the
184	184	following:
185	185	(a) A guardian of the person.
186	186	(b) A declaration, as defined in s. 154.02 (1).
187	187	(c) A do-not-resuscitate order, as defined in s. 154.17 (2).
188	188	(d) A health care agent, as defined in s. 155.01 (4), under a power of attorney
189	189	for health care, as defined in s. 155.01 (10).
190	190	(3) This chapter does not apply to any patient described under sub. (1) who is
191	191	the subject of any pending action under ch. 51, 54, or 55.
192	192	56.05 Identification of a surrogate decision maker. (1) (a) Whenever a
193	193	patient in a hospital is incapacitated, the attending physician shall make a
194	194	reasonable inquiry as to whether the patient has a guardian of the person or an
195	195	advanced planning instrument that applies to the patient's condition. If the patient
196	196	does not have a guardian of the person or an applicable advanced planning
197	197	instrument, the attending physician shall make a reasonable inquiry as to the
198	198	availability of any possible surrogate decision maker under sub. (2). At a minimum,
199	199	the attending physician shall contact any family member of the patient that is
200	200	identified in the patient health care records or other personal effects. If a family
201	201	member is identified, the attending physician shall attempt to contact that person
202	202	by telephone within 24 hours after a determination is made that the patient is
203	203	incapacitated. No person may be held liable for civil damages or be subject to
204	204	professional discipline for violating a patient's right to confidentiality as a result of
205	205	making a reasonable inquiry as to the availability of any possible surrogate decision
206	206	maker, except for willful or wanton misconduct.
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232	232	SECTION 1 ASSEMBLY BILL 653
233	233	(b) For the purposes of par. (a), the attending physician may delegate the
234	234	attending physician's duty to do any of the following:
235	235	1. Make a reasonable inquiry as to whether the patient has a guardian of the
236	236	person or an advanced planning instrument that applies to the patient's condition.
237	237	2. Make a reasonable inquiry as to the availability of any possible surrogate
238	238	decision maker under sub. (2).
239	239	3. Contact any family member of the patient that is identified in the patient
240	240	health care records or other personal effects.
241	241	(2) The following individuals, in the following order of priority, may act as a
242	242	surrogate decision maker for an incapacitated patient under this chapter:
243	243	(a) The patient's spouse or domestic partner under ch. 770.
244	244	(b) An adult child of the patient or, if there is more than one adult child, a
245	245	majority of the patient's adult children who are available within a reasonable period
246	246	of time for consultation with the patient's attending physician.
247	247	(c) A parent of the patient.
248	248	(d) An adult sibling of the patient or, if there is more than one adult sibling, a
249	249	majority of the patient's adult siblings who are available within a reasonable period
250	250	of time for consultation with the patient's attending physician.
251	251	(e) A grandparent of the patient.
252	252	(f) An adult grandchild of the patient or, if there is more than one adult
253	253	grandchild, a majority of the patient's adult grandchildren who are available within
254	254	a reasonable period of time for consultation with the patient's attending physician.
255	255	(g) A close friend or relative of the patient, other than a person specified in pars.
256	256	(a) to (f), to whom all of the following apply:
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283	283	SECTION 1
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285	285	1. The person is at least 18 years of age and has maintained sufficient regular
286	286	contact with the patient to be familiar with the patient's activities, health, and
287	287	beliefs.
288	288	2. The person has exhibited special care and concern for the patient.
289	289	(3) (a) If a willing surrogate decision maker has been identified under sub. (2),
290	290	the patient's attending physician shall record the surrogate decision maker's name,
291	291	address, telephone number, and relationship to the patient in the patient health care
292	292	records.
293	293	(b) If a surrogate decision maker who has been recorded under par. (a) becomes
294	294	unavailable for any reason and there are no remaining recorded surrogate decision
295	295	makers, the unavailable surrogate decision maker may be replaced by identifying a
296	296	new surrogate decision maker in the same manner as the initial surrogate decision
297	297	maker.
298	298	(c) In the event that an individual who has higher priority than the recorded
299	299	surrogate decision maker under par. (a) becomes available and is willing to be the
300	300	surrogate decision maker, the individual with the higher priority shall be recorded
301	301	as the surrogate decision maker.
302	302	(d) A surrogate decision maker recorded pursuant to par. (a) shall have the
303	303	same right as the patient to access patient health care records and to consent to the
304	304	disclosure of patient health care records.
305	305	56.07 Surrogate decision-making. A surrogate decision maker identified
306	306	under s. 56.05 may make a decision concerning care, treatment, or therapies, not
307	307	including decisions to continue or to forego life-sustaining treatment, on behalf of
308	308	a patient who is incapacitated, without resort to the courts or legal process, if the
309	309	decision is made in accordance with all of the following:
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337	337	(1) Any decision is made by a surrogate decision maker recorded pursuant to
338	338	s. 56.05 (3) in consultation with the attending physician.
339	339	(2) A surrogate decision maker makes decisions for the patient conforming as
340	340	closely as possible to what the patient would have decided under the circumstances,
341	341	taking into account evidence that includes the patient's personal, philosophical,
342	342	religious, and moral beliefs and ethical values relative to the purpose of life, sickness,
343	343	medical procedures, suffering, and death.
344	344	(3) The surrogate decision maker consults any available evidence of the
345	345	patient's wishes. In the event an unrevoked advanced planning instrument is no
346	346	longer valid due to a technical deficiency or is not applicable to the patient's
347	347	condition, that document may be used as evidence of a patient's wishes. The absence
348	348	of an advanced planning instrument does not give rise to any presumption as to the
349	349	patient's preferences regarding health care decisions.
350	350	(4) If the patient's wishes are unknown and remain unknown after reasonable
351	351	efforts to discern them, any decision shall be made on the basis of the patient's best
352	352	interests as determined by the surrogate decision maker. In determining the
353	353	patient's best interests, the surrogate shall consult with the patient's primary care
354	354	provider, if any, and weigh all other information, including the views of family and
355	355	friends, that the surrogate decision maker believes the patient would have
356	356	considered if able to act for himself or herself.
357	357	(5) An individual who acts as a surrogate decision maker under this chapter
358	358	shall, exercising reasonable diligence and to the extent feasible under the
359	359	circumstances, provide to all other individuals known to that individual and listed
360	360	under s. 56.05 (2) notice that the patient is incapacitated and of the right for
361	361	individuals to apply for temporary guardianship under s. 54.50.
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389	389	SECTION 1
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391	391	56.09 Reliance on surrogate decision-making authority. (1) A health
392	392	care provider and any other person may rely on any decision or direction made by the
393	393	surrogate decision maker that is not clearly contrary to this chapter to the same
394	394	extent and with the same effect as though the decision or direction was made by the
395	395	patient when the patient was not incapacitated. Any person dealing with the
396	396	surrogate decision maker may presume, in the absence of actual knowledge to the
397	397	contrary, that the acts of the surrogate decision maker conform to the requirements
398	398	of this chapter.
399	399	(2) Except as provided in sub. (3), any health care provider who relies on and
400	400	carries out the decisions made by a surrogate decision maker and who acts with due
401	401	care and in accordance with this chapter may not be subject to any claim, any
402	402	criminal prosecution, or any discipline for unprofessional conduct on the basis of the
403	403	lack of patient consent. Nothing in this chapter prohibits a claim against a health
404	404	care provider or facility based on the health care provider's or facility's negligence
405	405	relating to the performance of the health care provider's duties or the carrying out
406	406	of any instructions of the surrogate decision maker.
407	407	(3) No health care provider or other person is immune from civil liability under
408	408	sub. (2) if the health care provider or other person has actual knowledge either that
409	409	the surrogate decision maker is not entitled to act at the time the surrogate decision
410	410	maker takes an action or that any particular action or inaction by the surrogate
411	411	decision maker is otherwise contrary to the provisions of this chapter.
412	412	(4) A surrogate decision maker who acts with due care and in accordance with
413	413	the provisions of this chapter may not be subject to criminal prosecution or any claim
414	414	based on the lack of surrogate authority or based on the surrogate decision maker's
415	415	failure to act. The surrogate decision maker may not be liable for any claim solely
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443	443	because the surrogate decision maker may benefit from an act taken by the surrogate
444	444	decision maker, the surrogate decision maker has individual or conflicting interests
445	445	in relation to the care and affairs of the patient, or the surrogate decision maker acts
446	446	in a different manner with respect to the patient's care or interests from what the
447	447	surrogate decision maker would do with respect to his or her own care or interests.
448	448	56.11 Health care surrogate; mental health services. A surrogate
449	449	decision maker may not consent to the administration of psychotropic medication for
450	450	a patient.
451	451	SECTION 2.0Effective date.
452	452	(1) This act takes effect on the first day of the 7th month beginning after
453	453	publication.
454	454	(END)
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