Wisconsin 2023-2024 Regular Session

Wisconsin Senate Bill SB682 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 SENATE BILL 682
5	5	November 15, 2023 - Introduced by Senators KNODL and BRADLEY, cosponsored by
6	6	Representatives WICHGERS, ORTIZ-VELEZ, ARMSTRONG, BEHNKE, BODDEN,
7	7	BRANDTJEN, DONOVAN, MURPHY, MURSAU, O'CONNOR, RETTINGER and ROZAR.
8	8	Referred to Committee on Health.
9	9	AN ACT to create chapter 56 of the statutes; relating to: surrogate
10	10	decision-making.
11	11	Analysis by the Legislative Reference Bureau
12	12	This bill allows for next of kin to be a surrogate decision maker for a patient in
13	13	a hospital who is incapacitated in certain circumstances. Under the bill, when a
14	14	hospital patient is incapacitated, the attending physician for the patient must make
15	15	a reasonable inquiry as to whether the patient has a guardian of the person or an
16	16	advanced planning instrument that applies to the patient's condition. For purposes
17	17	of the bill, either two physicians, a physician and an individual who possesses a
18	18	resident education license, or a physician and a licensed advanced practice clinician,
19	19	who have personally examined the patient, must make the determination and sign
20	20	a statement specifying that the patient is incapacitated.
21	21	Under the bill, if there is no guardian or applicable advanced planning
22	22	instrument, the attending physician must make a reasonable inquiry as to the
23	23	availability of a surrogate decision maker by contacting any family member
24	24	identified in the patient's health care records or other personal effects. The bill
25	25	requires the attending physician to attempt to contact that person by telephone
26	26	within 24 hours after a determination is made that the patient is incapacitated.
27	27	Under the bill, the following individuals, in the following order of priority, may act
28	28	as a surrogate decision maker: 1) the patient's spouse or domestic partner; 2) an adult
29	29	child of the patient or, if there is more than one adult child, a majority of the adult
30	30	children who are available for consultation within a reasonable period of time; 3) a
31	31	parent of the patient; 4) an adult sibling of the patient or, if there is more than one
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36	36	adult sibling, a majority of the patient's adult siblings who are available for
37	37	consultation within a reasonable period of time; 5) a grandparent of the patient; 6)
38	38	an adult grandchild of the patient or, if there is more than one adult grandchild, a
39	39	majority of the patient's adult grandchildren who are available for consultation
40	40	within a reasonable period of time; or 7) a close friend or relative of the patient if the
41	41	person is at least 18 years of age, has maintained sufficient regular contact with the
42	42	patient to be familiar with the patient's activities, health, and beliefs, and has
43	43	exhibited special care and concern for the patient. The bill provides that if a willing
44	44	surrogate decision maker is identified, the attending physician must record the
45	45	surrogate decision maker's information in the patient health records. The bill
46	46	includes provisions for recording a replacement surrogate decision maker if the
47	47	initial person identified becomes unavailable.
48	48	The bill provides that a surrogate decision maker may, if made in accordance
49	49	with certain requirements, make decisions for the patient concerning the patient's
50	50	care, treatment, or therapies without involving the courts or legal process, but a
51	51	surrogate decision maker may not make a decision to continue or to forego
52	52	life-sustaining treatment. Under the bill, any decision made by a surrogate decision
53	53	maker must be recorded in consultation with the attending physician and must
54	54	conform as closely as possible to what the patient would have decided under the
55	55	circumstances, taking into account evidence that includes the patient's personal,
56	56	philosophical, religious, and moral beliefs and ethical values relative to the purpose
57	57	of life, sickness, medical procedures, suffering, and death. The bill requires that the
58	58	surrogate decision maker consult any available evidence of the patient's wishes,
59	59	including an unrevoked advanced planning instrument that is not valid due to a
60	60	technical deficiency or is not applicable to the patient's condition. The bill provides
61	61	that the absence of an advanced planning instrument does not give rise to any
62	62	presumption as to the patient's preferences regarding health care decisions. Under
63	63	the bill, if the patient's wishes are unknown and remain unknown after reasonable
64	64	efforts to discern them, the surrogate decision maker must make decisions on the
65	65	basis of the patient's best interests as determined by the surrogate decision maker.
66	66	In determining the patient's best interests, the surrogate decision maker must
67	67	consult with the patient's primary care provider, if any, and weigh all other
68	68	information, including the views of family and friends, that the surrogate decision
69	69	maker believes the patient would have considered if able to act for himself or herself.
70	70	The bill provides that a surrogate decision maker must exercise reasonable diligence
71	71	and, to the extent feasible under the circumstances, provide to all other individuals
72	72	known to that individual, including certain specific individuals described in the bill,
73	73	notice that the patient is incapacitated and of the right for individuals to apply for
74	74	temporary guardianship.
75	75	The bill provides that health care providers and other persons may rely on any
76	76	decision or direction made by the surrogate decision maker that is not clearly
77	77	contrary to the provisions of the bill to the same extent and with the same effect as
78	78	though it was made by the patient when the patient was not incapacitated. The bill
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83	83	presume that the acts of the surrogate decision maker conform to the requirements
84	84	under the bill.
85	85	Under the bill, a health care provider who relies on and carries out decisions
86	86	made by a surrogate decision maker and acts with due care and in accordance with
87	87	the provisions of the bill may not be subject to any claim, any criminal prosecution,
88	88	or discipline for unprofessional conduct on the basis of the lack of patient consent.
89	89	The bill does not prohibit a claim against a health care provider or facility based on
90	90	negligence relating to the performance of the health care provider's duties or the
91	91	carrying out of any instructions of the surrogate decision maker, nor does the bill
92	92	provide immunity from civil liability if the health care provider or other person has
93	93	actual knowledge either that the surrogate decision maker is not entitled to act at
94	94	the time an action is taken or that any particular action or inaction by the surrogate
95	95	decision maker is otherwise contrary to the requirements under the bill.
96	96	The bill provides that a surrogate decision maker who acts with due care and
97	97	in accordance with the provisions of the bill is not subject to criminal prosecution or
98	98	any claim based on the lack of surrogate authority or based on the surrogate decision
99	99	maker's failure to act. The bill also provides that a surrogate decision maker may
100	100	not be liable for any claim solely because he or she may benefit, has individual or
101	101	conflicting interests in relation to the care and affairs of the patient, or acts in a
102	102	different manner with respect to the patient's care or interests from what the
103	103	surrogate decision maker would do with respect to his or her own care or interests.
104	104	The people of the state of Wisconsin, represented in senate and assembly, do
105	105	enact as follows:
106	106	SECTION 1. Chapter 56 of the statutes is created to read:
107	107	CHAPTER 56
108	108	HEALTH CARE SURROGA TE
109	109	DECISION-MAKING
110	110	56.01 Definitions. In this chapter:
111	111	(1) “Advanced planning instrument” means any of the following:
112	112	(a) A declaration, as defined in s. 154.02 (1).
113	113	(b) A do-not-resuscitate order, as defined in s. 154.17 (2).
114	114	(c) A power of attorney for health care, as defined in s. 155.01 (10).
115	115	(2) “Attending physician” means a physician licensed under subch. II of ch. 448
116	116	who is selected by or assigned to the patient and who has primary responsibility for
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129	129	SECTION 1 SENATE BILL 682
130	130	treatment and care of the patient. If more than one physician shares primary
131	131	responsibility for treatment and care of the patient, any of those physicians may act
132	132	as the attending physician under this chapter.
133	133	(3) “Guardian of the person” has the meaning given in s. 54.01 (12).
134	134	(4) “Incapacitated” means unable to receive and evaluate information
135	135	effectively or to communicate decisions to such an extent that the individual lacks
136	136	the capacity to manage his or her health care decisions, including decisions about his
137	137	or her hospital and post-hospital care.
138	138	(5) “Patient health care records” has the meaning given in s. 146.81 (4).
139	139	56.03 Applicability. (1) Except as otherwise provided in this section, this
140	140	chapter applies to a patient in a hospital who is incapacitated. The desires of a
141	141	patient who is not incapacitated supersede any surrogate decision-making
142	142	authority under this chapter. A determination that a patient is incapacitated for
143	143	purposes of this chapter shall be made by 2 physicians, as defined in s. 448.01 (5),
144	144	by one physician and one individual who possesses a resident education license
145	145	issued under s. 448.04 (1) (bm), or by one physician and one licensed advanced
146	146	practice clinician, as defined in s. 155.01 (1g), who personally examine the patient
147	147	and sign a statement specifying that the patient is incapacitated. Mere old age,
148	148	eccentricity, or physical disability, either singly or together, are insufficient to make
149	149	a finding that a patient is incapacitated. Neither of the individuals who make a
150	150	determination that a patient is incapacitated may be a relative, as defined in s.
151	151	242.01 (11), of the patient or have knowledge that he or she is entitled to or has a
152	152	claim on any portion of the patient's estate. A copy of the statement shall be included
153	153	in the patient's health care records.
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180	180	SECTION 1
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182	182	(2) This chapter does not apply to patients who have in effect any of the
183	183	following:
184	184	(a) A guardian of the person.
185	185	(b) A declaration, as defined in s. 154.02 (1).
186	186	(c) A do-not-resuscitate order, as defined in s. 154.17 (2).
187	187	(d) A health care agent, as defined in s. 155.01 (4), under a power of attorney
188	188	for health care, as defined in s. 155.01 (10).
189	189	(3) This chapter does not apply to any patient described under sub. (1) who is
190	190	the subject of any pending action under ch. 51, 54, or 55.
191	191	56.05 Identification of a surrogate decision maker. (1) (a) Whenever a
192	192	patient in a hospital is incapacitated, the attending physician shall make a
193	193	reasonable inquiry as to whether the patient has a guardian of the person or an
194	194	advanced planning instrument that applies to the patient's condition. If the patient
195	195	does not have a guardian of the person or an applicable advanced planning
196	196	instrument, the attending physician shall make a reasonable inquiry as to the
197	197	availability of any possible surrogate decision maker under sub. (2). At a minimum,
198	198	the attending physician shall contact any family member of the patient that is
199	199	identified in the patient health care records or other personal effects. If a family
200	200	member is identified, the attending physician shall attempt to contact that person
201	201	by telephone within 24 hours after a determination is made that the patient is
202	202	incapacitated. No person may be held liable for civil damages or be subject to
203	203	professional discipline for violating a patient's right to confidentiality as a result of
204	204	making a reasonable inquiry as to the availability of any possible surrogate decision
205	205	maker, except for willful or wanton misconduct.
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231	231	SECTION 1 SENATE BILL 682
232	232	(b) For the purposes of par. (a), the attending physician may delegate the
233	233	attending physician's duty to do any of the following:
234	234	1. Make a reasonable inquiry as to whether the patient has a guardian of the
235	235	person or an advanced planning instrument that applies to the patient's condition.
236	236	2. Make a reasonable inquiry as to the availability of any possible surrogate
237	237	decision maker under sub. (2).
238	238	3. Contact any family member of the patient that is identified in the patient
239	239	health care records or other personal effects.
240	240	(2) The following individuals, in the following order of priority, may act as a
241	241	surrogate decision maker for an incapacitated patient under this chapter:
242	242	(a) The patient's spouse or domestic partner under ch. 770.
243	243	(b) An adult child of the patient or, if there is more than one adult child, a
244	244	majority of the patient's adult children who are available within a reasonable period
245	245	of time for consultation with the patient's attending physician.
246	246	(c) A parent of the patient.
247	247	(d) An adult sibling of the patient or, if there is more than one adult sibling, a
248	248	majority of the patient's adult siblings who are available within a reasonable period
249	249	of time for consultation with the patient's attending physician.
250	250	(e) A grandparent of the patient.
251	251	(f) An adult grandchild of the patient or, if there is more than one adult
252	252	grandchild, a majority of the patient's adult grandchildren who are available within
253	253	a reasonable period of time for consultation with the patient's attending physician.
254	254	(g) A close friend or relative of the patient, other than a person specified in pars.
255	255	(a) to (f), to whom all of the following apply:
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282	282	SECTION 1
283	283	SENATE BILL 682
284	284	1. The person is at least 18 years of age and has maintained sufficient regular
285	285	contact with the patient to be familiar with the patient's activities, health, and
286	286	beliefs.
287	287	2. The person has exhibited special care and concern for the patient.
288	288	(3) (a) If a willing surrogate decision maker has been identified under sub. (2),
289	289	the patient's attending physician shall record the surrogate decision maker's name,
290	290	address, telephone number, and relationship to the patient in the patient health care
291	291	records.
292	292	(b) If a surrogate decision maker who has been recorded under par. (a) becomes
293	293	unavailable for any reason and there are no remaining recorded surrogate decision
294	294	makers, the unavailable surrogate decision maker may be replaced by identifying a
295	295	new surrogate decision maker in the same manner as the initial surrogate decision
296	296	maker.
297	297	(c) In the event that an individual who has higher priority than the recorded
298	298	surrogate decision maker under par. (a) becomes available and is willing to be the
299	299	surrogate decision maker, the individual with the higher priority shall be recorded
300	300	as the surrogate decision maker.
301	301	(d) A surrogate decision maker recorded pursuant to par. (a) shall have the
302	302	same right as the patient to access patient health care records and to consent to the
303	303	disclosure of patient health care records.
304	304	56.07 Surrogate decision-making. A surrogate decision maker identified
305	305	under s. 56.05 may make a decision concerning care, treatment, or therapies, not
306	306	including decisions to continue or to forego life-sustaining treatment, on behalf of
307	307	a patient who is incapacitated, without resort to the courts or legal process, if the
308	308	decision is made in accordance with all of the following:
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335	335	SECTION 1 SENATE BILL 682
336	336	(1) Any decision is made by a surrogate decision maker recorded pursuant to
337	337	s. 56.05 (3) in consultation with the attending physician.
338	338	(2) A surrogate decision maker makes decisions for the patient conforming as
339	339	closely as possible to what the patient would have decided under the circumstances,
340	340	taking into account evidence that includes the patient's personal, philosophical,
341	341	religious, and moral beliefs and ethical values relative to the purpose of life, sickness,
342	342	medical procedures, suffering, and death.
343	343	(3) The surrogate decision maker consults any available evidence of the
344	344	patient's wishes. In the event an unrevoked advanced planning instrument is no
345	345	longer valid due to a technical deficiency or is not applicable to the patient's
346	346	condition, that document may be used as evidence of a patient's wishes. The absence
347	347	of an advanced planning instrument does not give rise to any presumption as to the
348	348	patient's preferences regarding health care decisions.
349	349	(4) If the patient's wishes are unknown and remain unknown after reasonable
350	350	efforts to discern them, any decision shall be made on the basis of the patient's best
351	351	interests as determined by the surrogate decision maker. In determining the
352	352	patient's best interests, the surrogate shall consult with the patient's primary care
353	353	provider, if any, and weigh all other information, including the views of family and
354	354	friends, that the surrogate decision maker believes the patient would have
355	355	considered if able to act for himself or herself.
356	356	(5) An individual who acts as a surrogate decision maker under this chapter
357	357	shall, exercising reasonable diligence and to the extent feasible under the
358	358	circumstances, provide to all other individuals known to that individual and listed
359	359	under s. 56.05 (2) notice that the patient is incapacitated and of the right for
360	360	individuals to apply for temporary guardianship under s. 54.50.
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388	388	SECTION 1
389	389	SENATE BILL 682
390	390	56.09 Reliance on surrogate decision-making authority. (1) A health
391	391	care provider and any other person may rely on any decision or direction made by the
392	392	surrogate decision maker that is not clearly contrary to this chapter to the same
393	393	extent and with the same effect as though the decision or direction was made by the
394	394	patient when the patient was not incapacitated. Any person dealing with the
395	395	surrogate decision maker may presume, in the absence of actual knowledge to the
396	396	contrary, that the acts of the surrogate decision maker conform to the requirements
397	397	of this chapter.
398	398	(2) Except as provided in sub. (3), any health care provider who relies on and
399	399	carries out the decisions made by a surrogate decision maker and who acts with due
400	400	care and in accordance with this chapter may not be subject to any claim, any
401	401	criminal prosecution, or any discipline for unprofessional conduct on the basis of the
402	402	lack of patient consent. Nothing in this chapter prohibits a claim against a health
403	403	care provider or facility based on the health care provider's or facility's negligence
404	404	relating to the performance of the health care provider's duties or the carrying out
405	405	of any instructions of the surrogate decision maker.
406	406	(3) No health care provider or other person is immune from civil liability under
407	407	sub. (2) if the health care provider or other person has actual knowledge either that
408	408	the surrogate decision maker is not entitled to act at the time the surrogate decision
409	409	maker takes an action or that any particular action or inaction by the surrogate
410	410	decision maker is otherwise contrary to the provisions of this chapter.
411	411	(4) A surrogate decision maker who acts with due care and in accordance with
412	412	the provisions of this chapter may not be subject to criminal prosecution or any claim
413	413	based on the lack of surrogate authority or based on the surrogate decision maker's
414	414	failure to act. The surrogate decision maker may not be liable for any claim solely
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441	441	SECTION 1 SENATE BILL 682
442	442	because the surrogate decision maker may benefit from an act taken by the surrogate
443	443	decision maker, the surrogate decision maker has individual or conflicting interests
444	444	in relation to the care and affairs of the patient, or the surrogate decision maker acts
445	445	in a different manner with respect to the patient's care or interests from what the
446	446	surrogate decision maker would do with respect to his or her own care or interests.
447	447	56.11 Health care surrogate; mental health services. A surrogate
448	448	decision maker may not consent to the administration of psychotropic medication for
449	449	a patient.
450	450	SECTION 2.0Effective date.
451	451	(1) This act takes effect on the first day of the 7th month beginning after
452	452	publication.
453	453	(END)
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