AB861: Bill Text

2013 - 2014 LEGISLATURE

2013 Assembly BILL 861

March 11, 2014 - Introduced by Representatives Berceau, C. Taylor, Johnson, Pope, Ringhand, Sargent, Sinicki and Zamarripa, cosponsored by Senators Shilling, Erpenbach, Harris, Risser and L. Taylor. Referred to Committee on Health.

AB861,1,3 An Act to repeal 154.19 (1) (e) and 154.19 (3) (b) 3.; and to amend 154.03 (2), 154.07 (2), 155.20 (6) and 155.30 (3) of the statutes; relating to: effect of advance directives and powers of attorney for health care during pregnancy.

Analysis by the Legislative Reference Bureau

Current law allows an individual to execute a declaration to physicians that specifies whether that individual chooses to withhold or withdraw life-sustaining procedures or feeding tubes if that individual has a terminal condition or is in a vegetative state. The Wisconsin form to be prepared by the Department of Health Services specifies that the individual, if he or she has a terminal condition, does not want his or her dying to be artificially prolonged and does not want life-sustaining procedures to be used. Under current law the physician must follow the wishes in the declaration unless the physician believes that withholding or withdrawing life-sustaining procedures or feeding tubes would cause the patient pain or reduced comfort and that the pain or discomfort cannot be alleviated through pain relief measures. Under current law, the declaration to physicians has no effect during the pregnancy of a woman the physician knows to be pregnant. This bill eliminates the prohibition on giving effect to the declaration during a woman's pregnancy.

Under current law, a physician may issue a do-not-resuscitate order if all of the following apply: the patient has attained age 18 and has a terminal condition; the patient has a medical condition in which resuscitation would be unsuccessful in restoring cardiac or respiratory function or the patient would experience repeated cardiac or pulmonary failure within a short period before death; the patient or the patient's guardian or health care agent requests, consents to, and signs the order; the order is in writing; and the physician does not know the patient to be pregnant. Current law requires emergency medical technicians, first responders, and emergency health care facility personnel to follow a do-not-resuscitate order except if the do-not-resuscitate order is revoked, if the patient's do-not-resuscitate bracelet appears to have been tampered with or removed, or if the emergency personnel know the patient to be pregnant. The bill removes the restriction on obtaining a do-not-resuscitate order when the patient is pregnant. The bill also removes the prohibition on following do-not-resuscitate orders when the patient is pregnant.

Under current law, an individual may execute a power of attorney for health care, which allows the designation of a health care agent to make health care decisions on behalf of the individual while the individual is incapacitated. Current law and the Wisconsin form for the power of attorney for health care allow the individual who is executing the power of attorney for health care to specify certain decisions that the agent may make. Specifically, the individual may designate by checking "yes" or "no" whether the agent may make health care decisions when the individual is pregnant. If the individual does not check either "yes" or "no" on the form, the form specifies that the agent may not make health care decisions when the individual is pregnant. The bill changes the default so that if an individual does not check either "yes" or "no" on the form, the agent may make health care decisions when the individual is pregnant.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB861,1 Section 1. 154.03 (2) of the statutes is amended to read:

AB861,3,8 154.03 (2) The department shall prepare and provide copies of the declaration and accompanying information for distribution in quantities to health care professionals, hospitals, nursing homes, county clerks and local bar associations and individually to private persons. The department shall include, in information accompanying the declaration, at least the statutory definitions of terms used in the declaration, statutory restrictions on who may be witnesses to a valid declaration, a statement explaining that valid witnesses acting in good faith are statutorily immune from civil or criminal liability, an instruction to potential declarants to read and understand the information before completing the declaration and a statement explaining that an instrument may, but need not be, filed with the register in probate of the declarant's county of residence. The department may charge a reasonable fee for the cost of preparation and distribution. The declaration distributed by the department of health services shall be easy to read, the type size may be no smaller than 10 point, and the declaration shall be in the following form, setting forth on the first page the wording before the ATTENTION statement and setting forth on the 2nd page the ATTENTION statement and remaining wording:

AB861,3,9 Declaration to physicians

AB861,3,10 (WISCONSIN LIVING WILL)

AB861,3,16 I,...., being of sound mind, voluntarily state my desire that my dying not be prolonged under the circumstances specified in this document. Under those circumstances, I direct that I be permitted to die naturally. If I am unable to give directions regarding the use of life-sustaining procedures or feeding tubes, I intend that my family and physician honor this document as the final expression of my legal right to refuse medical or surgical treatment.

AB861,3,20 1. If I have a TERMINAL CONDITION, as determined by 2 physicians who have personally examined me, I do not want my dying to be artificially prolonged and I do not want life-sustaining procedures to be used. In addition, the following are my directions regarding the use of feeding tubes:

AB861,3,21 .... YES, I want feeding tubes used if I have a terminal condition.

AB861,3,22 .... NO, I do not want feeding tubes used if I have a terminal condition.

AB861,3,23 If you have not checked either box, feeding tubes will be used.

AB861,4,3 2. If I am in a PERSISTENT VEGETATIVE STATE, as determined by 2 physicians who have personally examined me, the following are my directions regarding the use of life-sustaining procedures:

AB861,4,5 .... YES, I want life-sustaining procedures used if I am in a persistent vegetative state.

AB861,4,7 .... NO, I do not want life-sustaining procedures used if I am in a persistent vegetative state.

AB861,4,8 If you have not checked either box, life-sustaining procedures will be used.

AB861,4,11 3. If I am in a PERSISTENT VEGETATIVE STATE, as determined by 2 physicians who have personally examined me, the following are my directions regarding the use of feeding tubes:

AB861,4,12 .... YES, I want feeding tubes used if I am in a persistent vegetative state.

AB861,4,13 .... NO, I do not want feeding tubes used if I am in a persistent vegetative state.

AB861,4,14 If you have not checked either box, feeding tubes will be used.

AB861,4,17 If you are interested in more information about the significant terms used in this document, see section 154.01 of the Wisconsin Statutes or the information accompanying this document.

AB861,4,19 ATTENTION: You and the 2 witnesses must sign the document at the same time.

AB861,4,20 Signed ....   Date ....

AB861,4,21 Address ....   Date of birth ....

AB861,4,25 I believe that the person signing this document is of sound mind. I am an adult and am not related to the person signing this document by blood, marriage or adoption. I am not entitled to and do not have a claim on any portion of the person's estate and am not otherwise restricted by law from being a witness.

AB861,5,1 Witness signature ....   Date signed ....

AB861,5,2 Print name ....

AB861,5,3 Witness signature ....   Date signed ....

AB861,5,4 Print name ....

AB861,5,6 DIRECTIVES TO ATTENDING PHYSICIAN

AB861,5,10 1. This document authorizes the withholding or withdrawal of life-sustaining procedures or of feeding tubes when 2 physicians, one of whom is the attending physician, have personally examined and certified in writing that the patient has a terminal condition or is in a persistent vegetative state.

AB861,5,16 2. The choices in this document were made by a competent adult. Under the law, the patient's stated desires must be followed unless you believe that withholding or withdrawing life-sustaining procedures or feeding tubes would cause the patient pain or reduced comfort and that the pain or discomfort cannot be alleviated through pain relief measures. If the patient's stated desires are that life-sustaining procedures or feeding tubes be used, this directive must be followed.

AB861,5,19 3. If you feel that you cannot comply with this document, you must make a good faith attempt to transfer the patient to another physician who will comply. Refusal or failure to make a good faith attempt to do so constitutes unprofessional conduct.

AB861,5,21 4. If you know that the patient is pregnant, this document has no effect during her pregnancy.

AB861,5,22 * * * * *

AB861,5,25 The person making this living will may use the following space to record the names of those individuals and health care providers to whom he or she has given copies of this document:

AB861,6,1 .................................................................

AB861,6,2 .................................................................

AB861,6,3 .................................................................

AB861,2 Section 2. 154.07 (2) of the statutes is amended to read:

AB861,6,13 154.07 (2) Effect of declaration. The desires of a qualified patient who is competent supersede the effect of the declaration at all times. If a qualified patient is adjudicated incompetent at the time of the decision to withhold or withdraw life-sustaining procedures or feeding tubes, a declaration executed under this subchapter is presumed to be valid. The declaration of a qualified patient who is diagnosed as pregnant by the attending physician has no effect during the course of the qualified patient's pregnancy. For the purposes of this subchapter, a physician or inpatient health care facility may presume in the absence of actual notice to the contrary that a person who executed a declaration was of sound mind at the time.

AB861,3 Section 3. 154.19 (1) (e) of the statutes is repealed.

AB861,4 Section 4. 154.19 (3) (b) 3. of the statutes is repealed.

AB861,5 Section 5. 155.20 (6) of the statutes is amended to read:

AB861,6,20 155.20 (6) If the principal is known to be pregnant, the health care agent may make a health care decision on behalf of the principal that the power of attorney for health care instrument authorizes, unless the power of attorney for health care instrument specifies otherwise.

AB861,6 Section 6. 155.30 (3) of the statutes is amended to read:

AB861,7,9 155.30 (3) The department shall prepare and provide copies of a power of attorney for health care instrument and accompanying information for distribution in quantities to health care professionals, hospitals, nursing homes, multipurpose senior centers, county clerks, and local bar associations and individually to private persons. The department shall include, in information accompanying the copy of the instrument, at least the statutory definitions of terms used in the instrument, statutory restrictions on who may be witnesses to a valid instrument, a statement explaining that valid witnesses acting in good faith are statutorily immune from civil or criminal liability and a statement explaining that an instrument may, but need not, be filed with the register in probate of the principal's county of residence. The department may charge a reasonable fee for the cost of preparation and distribution. The power of attorney for health care instrument distributed by the department shall include the notice specified in sub. (1) and shall be in the following form:

AB861,7,11 POWER OF ATTORNEY FOR HEALTH CARE

AB861,7,12 Document made this.... day of.... (month),.... (year).

AB861,7,14 CREATION OF POWER OF ATTORNEY FOR HEALTH CARE

AB861,7,22 I,.... (print name, address and date of birth), being of sound mind, intend by this document to create a power of attorney for health care. My executing this power of attorney for health care is voluntary. Despite the creation of this power of attorney for health care, I expect to be fully informed about and allowed to participate in any health care decision for me, to the extent that I am able. For the purposes of this document, "health care decision" means an informed decision to accept, maintain, discontinue or refuse any care, treatment, service or procedure to maintain, diagnose or treat my physical or mental condition.

AB861,7,24 In addition, I may, by this document, specify my wishes with respect to making an anatomical gift upon my death.

AB861,8,2 DESIGNATION OF HEALTH CARE AGENT

AB861,8,17 If I am no longer able to make health care decisions for myself, due to my incapacity, I hereby designate.... (print name, address and telephone number) to be my health care agent for the purpose of making health care decisions on my behalf. If he or she is ever unable or unwilling to do so, I hereby designate.... (print name, address and telephone number) to be my alternate health care agent for the purpose of making health care decisions on my behalf. Neither my health care agent nor my alternate health care agent whom I have designated is my health care provider, an employee of my health care provider, an employee of a health care facility in which I am a patient or a spouse of any of those persons, unless he or she is also my relative. For purposes of this document, "incapacity" exists if 2 physicians or a physician and a psychologist who have personally examined me sign a statement that specifically expresses their opinion that I have a condition that means that I am unable to receive and evaluate information effectively or to communicate decisions to such an extent that I lack the capacity to manage my health care decisions. A copy of that statement must be attached to this document.

AB861,8,19 GENERAL STATEMENT OF AUTHORITY GRANTED

AB861,9,2 Unless I have specified otherwise in this document, if I ever have incapacity I instruct my health care provider to obtain the health care decision of my health care agent, if I need treatment, for all of my health care and treatment. I have discussed my desires thoroughly with my health care agent and believe that he or she understands my philosophy regarding the health care decisions I would make if I were able. I desire that my wishes be carried out through the authority given to my health care agent under this document.

AB861,9,11 If I am unable, due to my incapacity, to make a health care decision, my health care agent is instructed to make the health care decision for me, but my health care agent should try to discuss with me any specific proposed health care if I am able to communicate in any manner, including by blinking my eyes. If this communication cannot be made, my health care agent shall base his or her decision on any health care choices that I have expressed prior to the time of the decision. If I have not expressed a health care choice about the health care in question and communication cannot be made, my health care agent shall base his or her health care decision on what he or she believes to be in my best interest.

AB861,9,13 LIMITATIONS ON MENTAL HEALTH TREATMENT

AB861,9,19 My health care agent may not admit or commit me on an inpatient basis to an institution for mental diseases, an intermediate care facility for persons with an intellectual disability, a state treatment facility or a treatment facility. My health care agent may not consent to experimental mental health research or psychosurgery, electroconvulsive treatment or drastic mental health treatment procedures for me.

AB861,9,22 ADMISSION TO NURSING HOMES OR COMMUNITY-BASED RESIDENTIAL FACILITIES

AB861,9,24 My health care agent may admit me to a nursing home or community-based residential facility for short-term stays for recuperative care or respite care.

AB861,10,3 If I have checked "Yes" to the following, my health care agent may admit me for a purpose other than recuperative care or respite care, but if I have checked "No" to the following, my health care agent may not so admit me:

AB861,10,4 1. A nursing home — Yes.... No....

AB861,10,5 2. A community-based residential facility — Yes.... No....

AB861,10,7 If I have not checked either "Yes" or "No" immediately above, my health care agent may admit me only for short-term stays for recuperative care or respite care.

AB861,10,8 PROVISION OF A FEEDING TUBE

AB861,10,13 If I have checked "Yes" to the following, my health care agent may have a feeding tube withheld or withdrawn from me, unless my physician has advised that, in his or her professional judgment, this will cause me pain or will reduce my comfort. If I have checked "No" to the following, my health care agent may not have a feeding tube withheld or withdrawn from me.

AB861,10,16 My health care agent may not have orally ingested nutrition or hydration withheld or withdrawn from me unless provision of the nutrition or hydration is medically contraindicated.

AB861,10,17 Withhold or withdraw a feeding tube — Yes.... No....

AB861,10,19 If I have not checked either "Yes" or "No" immediately above, my health care agent may not have a feeding tube withdrawn from me.

AB861,10,21 HEALTH CARE DECISIONS FOR PREGNANT WOMEN

AB861,10,25 If I have checked "Yes" to the following, my health care agent may make health care decisions for me even if my agent knows I am pregnant. If I have checked "No" to the following, my health care agent may not make health care decisions for me if my health care agent knows I am pregnant.

AB861,11,1 Health care decision if I am pregnant — Yes.... No....

AB861,11,4 If I have not checked either "Yes" or "No" immediately above, my health care agent may not make health care decisions for me if my health care agent knows I am pregnant.

AB861,11,6 STATEMENT OF DESIRES, SPECIAL PROVISIONS OR LIMITATIONS