2011 - 2012 LEGISLATURE
ASSEMBLY AMENDMENT 8,
TO 2011 SENATE BILL 306
March 15, 2012 - Offered by Representative Sinicki.
146.39 of the statutes is created to read:
6146.39 Voluntary and informed consent; vasectomy. (1) Definitions.
(a) "Qualified person assisting the physician" means a social worker certified 9
under ch. 457, a registered nurse, or a physician assistant to whom a physician who 10
is to perform a vasectomy has delegated the responsibility, as the physician's agent, 11
for providing the information required under sub. (2) (c) 2.
(b) "Qualified physician" means a physician who by training or experience is 13
qualified to provide the information required under sub. (2) (c) 1.
1(2) Voluntary and informed consent.
Vasectomies may not be 2
performed unless the man who is to receive the vasectomy has given voluntary and 3
informed written consent under the requirements of this section.
(b) Voluntary consent.
Consent under this section to a vasectomy is voluntary 5
only if the consent is given freely and without coercion by any person. The physician 6
who is to perform the vasectomy shall determine whether the individual's consent 7
is, in fact, voluntary. Notwithstanding par. (c) 3., the physician shall make the 8
determination by speaking to the individual in person, out of the presence of anyone 9
other than a person working for or with the physician. If the physician has reason 10
to suspect that the individual is in danger of being physically harmed by anyone who 11
is coercing the individual to consent to a vasectomy against his will, the physician 12
shall inform the individual of services for victims or individuals at risk of domestic 13
abuse and provide him with private access to a telephone.
(c) Informed consent.
An individual's consent to receive a vasectomy is 15
informed only if all of the following first take place:
1. At least 24 hours before the vasectomy is performed, the physician who 17
performs the vasectomy or any other qualified physician has, in person, orally 18
informed the individual of all of the following:
a. Whether or not, according to the reasonable medical judgment of the 20
physician, the individual is a candidate for a vasectomy.
b. The probable condition of the man's body and sexual organs at the time that 22
the information is provided. The physician or other qualified physician shall also 23
provide this information to the individual in writing at this time.
c. The particular medical risks, if any, associated with the man's sexual 25
d. The probable anatomical and physiological characteristics of the man's 2
e. The details of the medical method that would be used to perform the 4
f. The medical risks associated with the particular method of vasectomy that 6
would be used.
g. The recommended general medical instructions for the individual to follow 8
after a vasectomy to enhance his safe recovery and the name and telephone number 9
of a physician to call if complications arise after receiving a vasectomy.
h. That the individual has a right to refuse to consent to a vasectomy, that his 11
consent is not voluntary if anyone is coercing him to consent to having a vasectomy 12
against his will, and that it is unlawful for the physician to perform a vasectomy 13
without his voluntary consent.
i. That the individual may withdraw his consent to a vasectomy at any point 15
before the vasectomy is performed.
j. That the individual is not required to pay any amount for a vasectomy until 17
at least 24 hours have elapsed after the requirements of this paragraph are met.
k. That the man must return to the facility for a follow-up visit 12 to 18 days 19
after a vasectomy to confirm the efficacy of the procedure and evaluate the man's 20
2. At least 24 hours before performing a vasectomy, the physician who is to 22
perform the vasectomy, a qualified person assisting the physician, or another 23
qualified physician has, in person, done all of the following:
a. Orally informed the man that he has the right to receive and review the 25
printed materials described in par. (d). The physician or qualified person assisting
the physician shall physically give the materials to the individual and shall, in 2
person, orally inform him that the materials are free of charge and have been 3
provided by the state and shall provide him with the current updated copies of the 4
printed materials free of charge.
b. Orally informed the man that the printed materials described in par. (d) 6
contain information on services available for victims or individuals at risk of 7
c. Orally informed the man that the printed materials described in par. (d) 9
contain information on the availability of public and private agencies and services 10
to provide the individual with information on vasectomies.
3. The information that is required under subds. 1. and 2. is provided to the 12
individual in an individual setting that protects his privacy, maintains the 13
confidentiality of his decision, and ensures that the information he receives focuses 14
on his individual circumstances. This subdivision may not be construed to prevent 15
the individual from having a family member, or any other person of his choice, 16
present during his private counseling.
4. Whoever provides the information that is required under subd. 1. or 2., or 18
both, provides adequate opportunity for the man to ask questions and provides the 19
information that is requested or indicates to the man where he can obtain the 20
5. The individual certifies in writing on a form that the department shall 22
provide, prior to the vasectomy, that the information that is required under subds. 23
1. and 2. has been provided to him in the manner specified in subd. 3., that he has 24
been offered the information described in par. (d), and that all of his questions, as 25
specified under subd. 4., have been answered in a satisfactory manner. The
physician who is to perform the vasectomy or the qualified person assisting the 2
physician shall write on the certification form the name of the physician who is to 3
perform the vasectomy. The individual shall indicate on the certification form who 4
provided the information to him or her and when it was provided.
6. Prior to performing the vasectomy, the physician who is to perform the 6
vasectomy or the qualified person assisting the physician receives the written 7
certification that is required under subd. 5. The physician or qualified person 8
assisting the physician shall place the certification in the individual's medical record 9
and shall provide the individual with a copy of the certification.
7. If the individual considering a vasectomy is a minor, the requirements to 11
provide information to the minor under subds. 1. to 6. apply also to require provision 12
of the information to the individual whose consent is required. If the individual 13
considering a vasectomy is an individual adjudicated incompetent in this state, the 14
requirements to provide information to the individual under subds. 1. to 6. apply to 15
also require provision of the information to the person appointed as the individual's 16
(d) Printed information.
By the date that is 60 days after May 1, 2012, the 18
department shall cause to be published in English, Spanish, and other languages 19
spoken by a significant number of state residents, as determined by the department, 20
materials that are in an easily comprehensible format and are printed in type of not 21
less than 12-point size. The department shall distribute a reasonably adequate 22
number of the materials to county departments under s. 46.215, 46.22, or 46.23 and, 23
upon request, shall annually review the materials for accuracy and shall exercise 24
reasonable diligence in providing materials that are accurate and current. The 25
materials shall be all of the following:
1. Geographically indexed materials that are designed to inform an individual 2
about public and private agencies and services that are available to provide 3
information on vasectomies and provide imaging services. The materials shall 4
include a comprehensive list of the agencies available, a description of the services 5
that they offer, and a description of the manner in which they may be contacted, 6
including telephone numbers and addresses, or, at the option of the department, the 7
materials shall include a toll-free, 24-hour telephone number that may be called to 8
obtain an oral listing of available agencies and services in the locality of the caller 9
and a description of the services that the agencies offer and the manner in which they 10
may be contacted. The materials shall provide information on the availability of 11
governmentally funded programs that serve individuals seeking a vasectomy. 12
Services identified for the individual shall include Medical Assistance. The 13
materials shall state that it is unlawful to perform a vasectomy for which consent has 14
been coerced and that any physician who performs a vasectomy without obtaining 15
the individual's voluntary and informed consent is liable to him for damages in a civil 16
action and is subject to a civil penalty. The materials shall state that imaging 17
services may be obtainable by individuals who wish to use them and shall describe 18
the services. The materials shall include information on services in the state that 19
are available for victims or individuals at risk of domestic abuse.
2. Materials, including photographs, pictures, or drawings, that are designed 21
to show vasectomies. The pictures, drawings, and videos must be realistic and 22
appropriate for the method of vasectomy depicted. The materials shall be objective, 23
nonjudgmental and designed to convey only accurate scientific information about 24
vasectomies. The materials shall also contain objective, accurate information
describing the methods of vasectomy commonly employed, and the medical and 2
psychological risks commonly associated with each such procedure.
3. A certification form for use under par. (c) 5. that lists, in a check-off format, 4
all of the information required to be provided under par. (c) 5.
(e) Requirement to obtain materials.
A physician who intends to perform 6
vasectomies or another qualified physician, who reasonably believes that he or she 7
might have a patient for whom the information under par. (d) is required to be given, 8
shall request a reasonably adequate number of the materials that are described 9
under par. (d) from the department under par. (d) or from a county department under 10
s. 46.215, 46.22, or 46.23.
Satisfaction of the conditions required under par. (c) creates 12
a rebuttable presumption that the individual's consent and, if the individual is a 13
minor, the consent of the individual who also gives consent, to a vasectomy is 14
informed. The presumption of informed consent may be overcome by a 15
preponderance of evidence that establishes that the consent was obtained through 16
fraud, negligence, deception, misrepresentation or omission of a material fact. There 17
is no presumption that consent to a vasectomy is voluntary.
Any person who violates sub. (2) shall be required to forfeit not 19
less than $1,000 nor more than $10,000. No penalty may be assessed against the 20
man upon whom a vasectomy is performed or attempted to be performed.
21(4) Civil remedies.
(a) A person who violates sub. (2) is liable to the man on 22
whom the vasectomy is performed or attempted to be performed for damages arising 23
out of the performance of the vasectomy, including damages for personal injury and 24
emotional and psychological distress.
(b) A conviction under sub. (3) is not a condition precedent to bringing an action, 2
obtaining a judgment, or collecting the judgment under this subsection.
(c) Notwithstanding s. 814.04 (1), a person who recovers damages under par. 4
(a) may also recover reasonable attorney fees incurred in connection with the action.
(d) A contract is not a defense to an action under this subsection.
(e) Nothing in this subsection limits the common law rights of a person that are 7
not in conflict with sub. (2).
8(5) Affirmative defense.
No person is liable under sub. (3) or (4) or under s. 9
441.07 (1) (f), 448.02 (3) (a), or 457.26 (2) (gm) for failure under sub. (2) (c) 2. to provide 10
the printed materials described in sub. (2) (d) to an individual or for failure under 11
sub. (2) (c) 2. to describe the contents of the printed materials if the person has made 12
a reasonably diligent effort to obtain the printed materials under sub. (2) (e) and the 13
department and the county department under s. 46.215, 46.22, or 46.23 have not 14
made the printed materials available at the time that the person is required to give 15
them to the individual.".
441.07 (1) (f) of the statutes is amended to read:
(f) A violation of the requirements of s. 146.39 (2) (c) 2., 3., 4., 5., 6.,
20or 7. or
253.10 (3) (c) 2., 3., 4., 5., 6. or 7.
(a) The board shall investigate allegations of unprofessional conduct 23
and negligence in treatment by persons holding a license, certificate or limited 24
permit granted by the board. An allegation that a physician has violated s. 146.39
253.10 (3), 448.30 or 450.13 (2) or has failed to mail or present a medical 2
certification required under s. 69.18 (2) within 21 days after the pronouncement of 3
death of the person who is the subject of the required certificate or that a physician 4
has failed at least 6 times within a 6-month period to mail or present a medical 5
certificate required under s. 69.18 (2) within 6 days after the pronouncement of death 6
of the person who is the subject of the required certificate is an allegation of 7
unprofessional conduct. Information contained in reports filed with the board under 8
s. 49.45 (2) (a) 12r., 50.36 (3) (b), 609.17 or 632.715, or under 42 CFR 1001.2005
, shall 9
be investigated by the board. Information contained in a report filed with the board 10
under s. 655.045 (1), as created by 1985 Wisconsin Act 29
, which is not a finding of 11
negligence or in a report filed with the board under s. 50.36 (3) (c) may, within the 12
discretion of the board, be used as the basis of an investigation of a person named in 13
the report. The board may require a person holding a license, certificate or limited 14
permit to undergo and may consider the results of one or more physical, mental or 15
professional competency examinations if the board believes that the results of any 16
such examinations may be useful to the board in conducting its investigation.
(gm) Violated the requirements of s. 146.39 (2) (c) 2., 3., 4., 5., 6., or
253.10 (3) (c) 2., 3., 4., 5., 6. or 7.".