SB169: Bill Text

2003 Senate BILL 169

May 14, 2003 - Introduced by Senators Risser and Carpenter, cosponsored by Representatives Boyle, Sherman, Pocan and Berceau. Referred to Committee on Judiciary, Corrections and Privacy.

SB169,1,4 An Act to amend 979.01 (1) (intro.); and to create 16.009 (2) (q), 146.82 (2) (a) 8m., chapter 156 and 979.01 (1t) of the statutes; relating to: permitting certain individuals to make written requests for medication for the purpose of ending their lives, and providing penalties.

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, in writing, his or her attending physician for medication for the purpose of ending his or her 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 form for medication and requires that the Department of Health and Family Services (DHFS) prepare and provide copies of the request form for distribution to certain facilities, associations, and persons.

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

1. The requester must first make the request orally. Then, not fewer than 15 days later, the requester must again, voluntarily, 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, and is filed in the requester's patient health care record. After the request is filed, the requester must make a second oral request of his or her attending physician for the medication.

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 and 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 DHFS on a form prescribed by DHFS.

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 that causes impaired judgment or from a depression that causes impaired judgment.

The bill specifies that, if the requester is a patient in a health care facility, at least one of the witnesses to the written request for medication must be a patients' 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 living will 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. However, the bill also 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 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.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

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:

SB169, s. 1 Section 1. 16.009 (2) (q) of the statutes is created to read:

SB169,3,2 16.009 (2) (q) Designate patients' advocates under s. 156.19.

SB169, s. 2 Section 2. 146.82 (2) (a) 8m. of the statutes is created to read:

SB169,3,6 146.82 (2) (a) 8m. To the department under s. 156.07 (8) (g). The release of a patient health care record under this subdivision shall be limited to the information requested by the department under s. 156.25.

SB169, s. 3 Section 3. Chapter 156 of the statutes is created to read:

SB169,3,9 Chapter 156 Death with dignity

SB169,3,10 156.01 Definitions. In this chapter:

SB169,3,12 (1) "Attending physician" means a physician who has primary responsibility for the care of a requester and treatment of the requester's terminal disease.

SB169,3,14 (2) "Comfort care" means palliative care, as defined in s. 50.90 (3), or supportive care, as defined in s. 50.90 (4).

SB169,3,17 (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.

SB169,3,18 (4) "Department" means the department of health and family services.

SB169,3,19 (5) "Health care facility" has the meaning given in s. 155.01 (6).

SB169,3,20 (6) "Health care provider" has the meaning given in s. 155.01 (7).

SB169,3,21 (7) "Hospice care" has the meaning given in s. 50.94 (1) (a).

SB169,4,3 (8) "Incapacity" means the inability to receive and evaluate information effectively or to communicate decisions to such an extent that the individual lacks the capacity to manage his or her health care decisions.

SB169,4,8 (9) "Informed decision" means a determination by an individual, to request and obtain medication under a prescription so as to end his or her life in a humane and dignified manner, that is based on the individual's appreciation of the relevant facts and is made after the individual has been fully informed by the attending physician of all of the following:

SB169,4,9 (a) The individual's medical diagnosis.

SB169,4,10 (b) The individual's prognosis.

SB169,4,11 (c) The potential risks associated with taking the medication to be prescribed.

SB169,4,12 (d) The probable result of taking the medication to be prescribed.

SB169,4,14 (e) The feasible alternatives to the decision, including comfort care, hospice care, and pain control.

SB169,4,15 (10) "Multipurpose senior center" has the meaning given in s. 155.01 (9).

SB169,4,16 (11) "Patient health care records" has the meaning given in s. 146.81 (4).

SB169,4,17 (12) "Physician" has the meaning given in s. 448.01 (5).

SB169,4,18 (13) "Prescription" has the meaning given in s. 450.01 (19).

SB169,4,21 (14) "Requester" means an individual who requests medication under the requirements of this chapter for the purpose of ending his or her life in a humane and dignified manner.

SB169,4,23 (15) "Request for medication" means a document made under the requirements of s. 156.05.

SB169,4,24 (16) "Residence" has the meaning given in s. 46.27 (1) (d).

SB169,5,4 (17) "Responsible person" means the attending physician, a health care professional working with 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.

SB169,5,7 (18) "Social worker" means a person certified as a social worker, advanced practice social worker, independent social worker, or independent clinical social worker under s. 457.08.

SB169,5,11 (19) "Terminal disease" means an incurable and irreversible disease that has been diagnosed by an individual's attending physician, has been medically confirmed, and will, within reasonable medical judgment, cause death within 6 months.

SB169,5,17 156.03 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. 880 is presumed not to be of sound mind for purposes of this section.

SB169,5,19 156.05 Valid request for medication; requirements. (1) A valid request for medication shall be, for the purposes of s. 156.03, all of the following:

SB169,5,20 (a) In writing.

SB169,5,22 (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.

SB169,5,23 (c) Signed in the presence of 3 witnesses who meet the requirements of sub. (2).

SB169,5,24 (d) Made voluntarily.

SB169,5,25 (e) Substantially in the form specified in s. 156.15.

SB169,6,4 (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.

SB169,6,7 (2) (a) A witness to the making of a valid request for medication shall be an individual who has attained age 18. No witness to the making of a valid request for medication may, at the time of the witnessing, be any of the following:

SB169,6,8 1. Related to the requester by blood, marriage, or adoption.

SB169,6,10 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.

SB169,6,11 3. Directly financially responsible for the requester's health care.

SB169,6,15 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.

SB169,6,18 (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 patients' advocate designated under s. 156.19.

SB169,6,20 156.07 Attending physician; responsibilities and limitations. The attending physician shall do all of the following:

SB169,6,22 (1) Determine whether or not the requester has a terminal disease, has incapacity, and is making a request under s. 156.03 voluntarily.

SB169,6,25 (2) If the requester has a terminal disease, does not have incapacity, and is making a request under s. 156.03 voluntarily, inform the requester of all of the following:

SB169,7,1 (a) The requester's medical diagnosis.

SB169,7,2 (b) The requester's prognosis.

SB169,7,3 (c) The potential risks associated with taking the medication to be prescribed.

SB169,7,4 (d) The probable result of taking the medication to be prescribed.

SB169,7,6 (e) The feasible alternatives to taking the medication to be prescribed, including comfort care, hospice care, and pain control.

SB169,7,8 (3) Refer the requester to a consulting physician to meet the requirements of s. 156.09.

SB169,7,10 (4) Refer the requester for review and counseling if the referral is determined to be appropriate under s. 156.11.

SB169,7,11 (5) Ask the requester to notify his or her next of kin with respect to the request.

SB169,7,15 (6) Inform the requester that he or she may revoke the request 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 makes a 2nd oral request under s. 156.13 (3) (c).

SB169,7,17 (7) Before writing a prescription in response to a request for medication, verify that all of the following have occurred:

SB169,7,18 (a) The requester has fulfilled the requirements of s. 156.13 (3).

SB169,7,20 (b) No fewer than 48 hours have elapsed since the requester made a written request for medication.

SB169,7,21 (c) The requester has made an informed decision.

SB169,7,23 (8) Document or file all of the following in the requester's patient health care record:

SB169,7,24 (a) All oral and written requests for medication that are made by the requester.

SB169,8,3 (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.

SB169,8,6 (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.

SB169,8,8 (d) A certification of the outcome and determinations made during any review and counseling for which the requester was referred under s. 156.11.

SB169,8,10 (e) The attending physician's offer of an opportunity to revoke the request for medication, as required under sub. (6).

SB169,8,11 (f) Evidence of a revocation, if made, as specified in s. 156.17 (2).

SB169,8,22 (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. Any 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. 156.11, 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.

SB169,9,4 (9) If the attending physician refuses to act as the attending physician in complying with the requester's request for medication under 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 comply with 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.