SB312: Bill Text

Analysis by the Legislative Reference Bureau

This bill permits an individual who is of sound mind, is not incapacitated, is at least 18 years of age, is a resident of Wisconsin, and has a terminal disease to request voluntarily medication from his or her attending physician for the purpose of ending the individual's life in a humane and dignified manner. The bill authorizes the individual's attending physician to issue a prescription for the medication if specified requirements are met. Further, the bill creates a statutory request for medication authorization form and requires that the Department of Health Services prepare and provide copies of the form for distribution to certain facilities, associations, and persons.

The bill establishes the following requirements that must be met before an individual's attending physician may issue a prescription in response to the individual's request for medication:

1. First, the requester must orally ask his or her attending physician for the medication. Then, not fewer than 15 days later, the requester must again request the medication, using a valid request form that is substantially in the form specified in the bill, is in writing, is signed in the presence of three qualified witnesses and dated by the requester, is made voluntarily, and is filed in the requester's patient health care record. After the written request is filed, the requester must orally ask his or her attending physician a second time for the medication. The attending physician may not prescribe a medication to fulfill a request for medication until at least 48 hours after the second oral request.

2. The requester's attending physician must determine that the requester meets the requirements for making the request; must inform the requester of his or her diagnosis and prognosis, the probable results of taking the prescribed medication, and the alternatives to doing so; must refer the requester to a consulting physician for review; must, if the requester may be suffering from a psychiatric or psychological disorder, refer the requester to a psychiatrist or psychologist for review; must, in the requester's patient health care record, document certain information and certify that requirements have been met regarding the request; must ask the requester to inform his or her next of kin about the request; must inform the requester that the request is revocable and offer him or her the opportunity to revoke it; and must report information about the request to the department on a form prescribed by the department.

3. A consulting physician to whom the requester is referred must medically confirm the attending physician's diagnosis and determination that the requester meets the requirements for making the request. Any psychologist or psychiatrist to whom the requester is referred by the attending or consulting physician must determine and certify in writing that the requester is not suffering from a psychiatric or psychological disorder, including depression, that causes impaired judgment.

The bill specifies that, if the requester is a resident of a nursing home or community-based residential facility, at least one of the witnesses to the written request for medication must be a residents' advocate designated by the Board on Aging and Long-Term Care. The bill also specifies procedures by which a requester may revoke a request for medication and provides that making a request for medication does not revoke or otherwise modify a declaration to physicians or health care power of attorney that a requester may have. The bill provides that making a request for medication does not constitute attempted suicide and that taking medication under a fulfilled request does not constitute suicide. The bill establishes penalties for certain actions with regard to the request for medication, but prohibits a health care facility or health care provider from being charged with a crime, being held civilly liable, or being charged with unprofessional conduct for failing to fulfill a request (except that an attending physician who refuses to fulfill a valid request and fails to make a good faith attempt to transfer the requester to another physician who will fulfill the request may be charged with unprofessional conduct), for fulfilling a valid request, or for acting contrary to or failing to act on a revocation of a request unless the health care facility or health care provider has actual knowledge of the revocation.

This bill also provides that, when a patient dies as a result of a request for medication under the bill, a physician or other person having knowledge of the death need not report the death to the sheriff, medical examiner, or coroner of the county or the police chief of the community where the death took place, as is required for certain deaths, including suicides, under current law.

For further information see the state and local 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:

SB312,1 Section 1 . 16.009 (2) (q) of the statutes is created to read:

SB312,3,2 16.009 (2) (q) Designate residents' advocates under s. 156.19.

SB312,2 Section 2 . 146.82 (2) (a) 8m. of the statutes is created to read:

SB312,3,4 146.82 (2) (a) 8m. To the department under s. 156.09 (8) (g).

SB312,3 Section 3 . Chapter 156 of the statutes is created to read:

SB312,3,7 Chapter 156 compassionate choices

SB312,3,8 156.01 Definitions. In this chapter:

SB312,3,10 (1) “Attending physician" means a physician who has primary responsibility for the care of the requester and treatment of the requester's terminal disease.

SB312,3,12 (2) “Comfort care" means palliative care, as defined in s. 50.90 (3), or supportive care, as defined in s. 50.90 (4).

SB312,3,15 (3) “Consulting physician" means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis with respect to the requester's disease.

SB312,3,16 (4) “Department" means the department of health services.

SB312,3,17 (5) “Health care facility" has the meaning given in s. 155.01 (6).

SB312,3,18 (6) “Health care provider" has the meaning given in s. 155.01 (7).

SB312,3,19 (7) “Incapacity" has the meaning given in s. 155.01 (8).

SB312,3,20 (8) “Multipurpose senior center" has the meaning given in s. 155.01 (9).

SB312,4,1 (9) “Patient health care records" has the meaning given in s. 146.81 (4).

SB312,4,4 (10) “Request for medication" means a request for medication under the requirements of this chapter for the purpose of ending the requester's life in a humane and dignified manner.

SB312,4,5 (11) “Requester" means an individual who makes a request for medication.

SB312,4,6 (12) “Residence" has the meaning given in s. 46.27 (1) (d).

SB312,4,10 (13) “Responsible person" means the attending physician, a health care provider serving the requester, an inpatient health care facility in which the requester is located, or the requester's spouse, child, parent, brother, sister, grandparent, or grandchild.

SB312,4,12 (14) “Social worker" means a person certified under s. 457.08 as a social worker, advanced practice social worker, independent social worker, or clinical social worker.

SB312,4,15 (15) “Terminal disease" means an incurable and irreversible disease that has been diagnosed by an individual's attending physician and medically confirmed and that will, within reasonable medical judgment, cause death within 6 months.

SB312,4,21 156.03 Authorization to make request. An individual who is of sound mind, has attained age 18, has residence in this state, does not have incapacity, and has a terminal disease may voluntarily make a request for medication for the purpose of ending his or her life in a humane and dignified manner. An individual for whom an adjudication of incompetence and appointment of a guardian of the person is in effect under ch. 54 is presumed not to be of sound mind for purposes of this section.

SB312,5,3 156.05 Requester rights, responsibilities, and limitations. (1) No requester may receive a prescription that fulfills a request for medication unless he or she has made an informed decision. An informed decision under this chapter means a decision by an individual to request and obtain a prescription for medication so as to end his or her life in a humane and dignified manner that is based on an appreciation of the relevant facts and is made after having been fully informed by the attending physician of all of the following:

SB312,5,4 (a) The individual's medical diagnosis.

SB312,5,5 (b) The individual's prognosis.

SB312,5,7 (c) The potential risks associated with taking the medication to be prescribed under this chapter.

SB312,5,9 (d) The probable result of taking the medication to be prescribed under this chapter.

SB312,5,11 (e) The feasible alternatives, including comfort care, hospice care, and pain control.

SB312,5,13 (2) In order to receive a prescription for medication to end his or her life, a requester shall do all of the following:

SB312,5,15 (a) Make an oral request for medication for the purpose of ending his or her life to his or her attending physician.

SB312,5,19 (b) No fewer than 15 days after making the oral request for medication under par. (a), complete a valid written request for medication under s. 156.07. The written request under this paragraph may not be completed until a consulting physician completes the examination and report required under s. 156.11.

SB312,5,22 (c) After completing a written request for medication under par. (b), make a 2nd oral request for medication for the purpose of ending his or her life to his or her attending physician.

SB312,5,25 (3) No requester may be required to notify his or her next of kin regarding his or her request for medication, and no request for medication may be denied because the requester has failed to notify his or her next of kin.

SB312,6,3 156.07 Valid written request for medication; requirements. (1) A written request for medication under s. 156.05 (2) (b) is valid only if it is all of the following:

SB312,6,4 (a) In writing.

SB312,6,6 (b) Dated and signed by the requester or, at the express direction and in the presence of the requester, by an individual who has attained age 18.

SB312,6,7 (c) Signed in the presence of 3 witnesses who meet the requirements of sub. (2).

SB312,6,8 (d) Made voluntarily.

SB312,6,9 (e) Substantially in the form specified in s. 156.15.

SB312,6,13 (f) Filed in the requester's patient health care record in the custody of the requester's attending physician and, if the requester is an inpatient of a health care facility, in the requester's patient health care record in the custody of the health care facility.

SB312,6,17 (2) (a) A witness to the making of a valid written request for medication under this section shall be an individual who has attained age 18. No witness to the making of a valid written request for medication may, at the time of the witnessing, be any of the following:

SB312,6,18 1. Related to the requester by blood, marriage, or adoption.

SB312,6,20 2. An individual who has knowledge that he or she is entitled to or has a claim on any portion of the requester's estate.

SB312,6,21 3. Directly financially responsible for the requester's health care.

SB312,6,25 4. An individual who is a health care provider who is serving the requester at the time of the witnessing; an employee, other than a chaplain or a social worker, of the health care provider; or an employee, other than a chaplain or a social worker, of a health care facility in which the requester is a patient.

SB312,7,3 (b) If a requester is a resident of a nursing home or community-based residential facility, at least one of the witnesses to the request shall be a residents' advocate designated under s. 156.19.

SB312,7,5 156.09 Attending physician; responsibilities, and limitations. The attending physician shall do all of the following:

SB312,7,7 (1) Determine whether the requester has a terminal disease, does not have incapacity, and is making a request under this chapter voluntarily.

SB312,7,8 (2) Inform the requester of all of the following:

SB312,7,9 (a) The requester's medical diagnosis.

SB312,7,10 (b) The requester's prognosis.

SB312,7,12 (c) The potential risks associated with taking the medication to be prescribed under this chapter.

SB312,7,14 (d) The probable result of taking the medication to be prescribed under this chapter.

SB312,7,16 (e) The feasible alternatives to taking the medication to be prescribed under this chapter, including comfort care, hospice care, and pain control.

SB312,7,18 (3) Refer the requester to a consulting physician under the requirements of s. 156.11.

SB312,7,20 (4) Refer the requester for review and counseling if the referral is determined to be appropriate under s. 156.13.

SB312,7,22 (5) Ask the requester to notify his or her next of kin with respect to the request for medication.

SB312,8,2 (6) Inform the requester that he or she may revoke the request for medication at any time; explain the methods of revocation that are specified under s. 156.17 (1); and offer the requester an opportunity to revoke the request at the time, if any, that the requester orally asks for medication under s. 156.05 (2) (c).

SB312,8,4 (7) Before writing a prescription that fulfills a request for medication, verify that all of the following have occurred:

SB312,8,5 (a) The requester has fulfilled the requirements of s. 156.05 (2).

SB312,8,7 (b) No fewer than 48 hours have elapsed since the requester made a 2nd oral request for medication under s. 156.05 (2) (c).

SB312,8,8 (c) The requester has made an informed decision under s. 156.05 (1).

SB312,8,10 (8) Document or file all of the following in the requester's patient health care record:

SB312,8,13 (a) All occasions that the requester orally asks for medication under s. 156.05 (2) (a) or (c) as well as all written requests for medication under s. 156.05 (2) (b) that are made by the requester.

SB312,8,16 (b) The attending physician's diagnosis of and prognosis for the requester and determination as to whether the requester is incapacitated, is acting voluntarily, and has made an informed decision under s. 156.05 (1).

SB312,8,19 (c) The consulting physician's diagnosis of and prognosis for the requester and determination as to whether the requester is incapacitated, is acting voluntarily, and has made an informed decision under s. 156.05 (1).

SB312,8,21 (d) A certification of the outcome and determinations made during any review and counseling for which the requester was referred under s. 156.13.

SB312,8,23 (e) A certification as to whether the attending physician offered the requester an opportunity to revoke the request for medication, as required under sub. (6).

SB312,8,24 (f) Evidence of a revocation, if made, as specified in s. 156.17 (2).

SB312,9,11 (g) A certification as to whether the requirements of this chapter are met and indicating the steps taken to fulfill the request for medication, including a notation of any medication that is prescribed. The attending physician shall report the information under this paragraph to the department on a form prescribed by the department.   Information reported to the department under this paragraph that could identify the requester, the attending physician, the consulting physician, or the psychiatrist or psychologist to whom referral was made under s. 156.13, if any, is confidential and may not be disclosed by the department except under an investigation of an alleged violation of this chapter. The report of information under this paragraph is not a violation of any person's responsibility for maintaining the confidentiality of patient health care records under s. 146.82.

SB312,9,18 (9) If the attending physician refuses to fulfill the requester's request for medication that meets the requirements of this chapter, the attending physician shall make a good faith attempt to transfer the requester's care and treatment to another physician who will act as the attending physician under this chapter and will fulfill the requester's request for medication. If a transfer is made, the attending physician to whom the requester's care and treatment is transferred shall comply with the requirements of this section.

SB312,9,25 156.11 Consulting physician confirmation. Before an attending physician may fulfill a request for medication under this chapter, a consulting physician shall examine the requester and his or her relevant patient health care records and shall medically confirm the attending physician's determinations that the requester suffers from a terminal disease, does not have incapacity, is making a request for medication voluntarily, and has made an informed decision. The consulting physician shall complete a written report regarding his or her findings and provide it to the attending physician for filing in the requester's patient health care record in compliance with the certification requirement of s. 156.09 (8) (g).

SB312,10,14 156.13 Referral for review and counseling. If in the opinion of the attending physician or the consulting physician a requester may be suffering from a psychiatric or psychological disorder, including depression, that causes impaired judgment, the attending physician or consulting physician shall refer the requester for review and counseling to a physician specializing in psychiatry or a licensed psychologist, as defined in s. 455.01 (4). If a referral is made by the attending or consulting physician, no request for medication may be fulfilled under this chapter unless the physician specializing in psychiatry, or the psychologist, to whom referral was made, determines and certifies in writing that the requester is not suffering from a psychiatric or psychological disorder, including depression, that causes impaired judgment. The attending physician shall file the certification in the requester's patient health care record under s. 156.09 (8) (d).

SB312,11,2 156.15 Written request for medication; form. The department shall prepare and provide copies of a request for medication authorization form and accompanying information for distribution in quantities to health care providers, 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 request for medication authorization form, at least the statutory definitions of terms used in the request for medication authorization form, statutory restrictions on who may be witnesses to a valid request for medication under s. 156.07, and a statement explaining that valid witnesses acting in good faith are statutorily immune from civil or criminal liability. The request for medication authorization form distributed by the department shall be in the following form:

SB312,11,5 REQUEST FOR MEDICATION AUTHORIZATION TO END MY LIFE IN A HUMANE AND DIGNIFIED MANNER

SB312,11,7 I, .... (insert name), am an adult of sound mind, do not have incapacity, and am a resident of Wisconsin.