AB287: Bill Text

Analysis by the Legislative Reference Bureau

This bill makes the following changes regarding certifications for advance directives and health care powers of attorney:

1. Allows, unless a health care power of attorney instrument specifies otherwise, one physician and one qualified physician assistant or nurse practitioner to personally examine principals and make findings of incapacity upon which a health care power of attorney becomes effective. Under a health care power of attorney instrument executed under current law, unless specified otherwise, two physicians or one physician and one psychologist must personally examine and determine that a principal has incapacity for a health care power of attorney to become effective. Also, a physician assistant may make findings of incapacity under the bill only if a physician who oversees the physician assistant's practice affirms that the physician assistant is competent to evaluate the capacity of patients to manage health care decisions. A health care power of attorney instrument designates another person as an agent to make health care decisions on behalf of an individual who is incapable of making those decisions.

2. Allows an attending physician assistant or attending advanced practice registered nurse to issue do-not-resuscitate orders. Current law allows only attending physicians to issue do-not-resuscitate orders. Under current law, if a person has a serious medical condition that satisfies certain requirements, the person may request a do-not-resuscitate order which directs medical personnel to not attempt various types of resuscitation procedures on a person if the person suffers cardiac or respiratory arrest.

3. Specifies that under a declaration to physicians, also called a living will, unless specified otherwise, a physician assistant or advanced practice registered nurse may certify that a patient is afflicted with a terminal condition or is in a persistent vegetative state. Under current law, unless a declaration specifies otherwise, only physicians may make those certifications. If a patient has executed a declaration, and is certified to have a terminal condition or to be in a persistent vegetative state, in certain situations the declaration authorizes the withholding or withdrawal of life-sustaining procedures or of feeding tubes from the patient.

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:

AB287,1 Section 1 . 154.01 (1) of the statutes is renumbered 154.01 (1r) and amended to read:

AB287,2,5 154.01 (1r) “Attending physician health care professional" means a physician licensed under ch. 448 health care professional who has primary responsibility for the treatment and care of the patient.

AB287,2 Section 2 . 154.01 (1g) of the statutes is created to read:

AB287,3,4 154.01 (1g) “Advanced practice registered nurse” means a nurse licensed under ch. 441 who is currently certified by a national certifying body approved by the board of nursing as a nurse practitioner, certified nurse-midwife, certified registered nurse anesthetist, or clinical nurse specialist.

AB287,3 Section 3. 154.01 (3) of the statutes is renumbered 154.01 (3) (intro.) and amended to read:

AB287,3,8 154.01 (3) (intro.) “Health care professional" means a person licensed, certified or registered under ch. 441, 448 or 455. any of the following:

AB287,4 Section 4. 154.01 (3) (a) of the statutes is created to read:

AB287,3,10 154.01 (3) (a) A physician licensed under ch. 448.

AB287,5 Section 5. 154.01 (3) (b) of the statutes is created to read:

AB287,3,12 154.01 (3) (b) A physician assistant licensed under ch. 448.

AB287,6 Section 6. 154.01 (3) (c) of the statutes is created to read:

AB287,3,14 154.01 (3) (c) An advanced practice registered nurse.

AB287,7 Section 7. 154.01 (5) (intro.) of the statutes is amended to read:

AB287,3,21 154.01 (5) (intro.) “Life-sustaining procedure" means any medical procedure or intervention that, in the judgment of the attending physician health care professional, would serve only to prolong the dying process but not avert death when applied to a qualified patient. “Life-sustaining procedure" includes assistance in respiration, artificial maintenance of blood pressure and heart rate, blood transfusion, kidney dialysis and other similar procedures, but does not include:

AB287,8 Section 8. Subchapter II (title) of chapter 154 [precedes 154.02] of the statutes is amended to read:

AB287,3,24 CHAPTER 154

AB287,4,3 SUBCHAPTER II DECLARATION TO PHYSICIANS health care professionals

AB287,9 Section 9. 154.02 (3) of the statutes is amended to read:

AB287,4,9 154.02 (3) “Qualified patient" means a declarant who has been diagnosed and certified in writing to be afflicted with a terminal condition or to be in a persistent vegetative state by 2 physicians health care professionals, one of whom is the attending physician health care professional and one of whom is a physician, who have personally examined the declarant.

AB287,10 Section 10. 154.03 (title) of the statutes is amended to read:

AB287,4,11 154.03 (title) Declaration to physicians health care professionals .

AB287,11 Section 11. 154.03 (1) (intro.) of the statutes is amended to read:

AB287,5,10 154.03 (1) (intro.) Any person of sound mind and 18 years of age or older may at any time voluntarily execute a declaration, which shall take effect on the date of execution, authorizing the withholding or withdrawal of life-sustaining procedures or of feeding tubes when the person is in a terminal condition or is in a persistent vegetative state. A declarant may not authorize the withholding or withdrawal of any medication, life-sustaining procedure or feeding tube if the declarant's attending physician health care professional advises that, in his or her professional judgment, the withholding or withdrawal will cause the declarant pain or reduce the declarant's comfort and the pain or discomfort cannot be alleviated through pain relief measures. A declarant may not authorize the withholding or withdrawal of nutrition or hydration that is administered or otherwise received by the declarant through means other than a feeding tube unless the declarant's attending physician health care professional advises that, in his or her professional judgment, the administration is medically contraindicated. A declaration must be signed by the declarant in the presence of 2 witnesses. If the declarant is physically unable to sign a declaration, the declaration must be signed in the declarant's name by one of the witnesses or some other person at the declarant's express direction and in his or her presence; such a proxy signing shall either take place or be acknowledged by the declarant in the presence of 2 witnesses. The declarant is responsible for notifying his or her attending physician health care professional of the existence of the declaration. An attending physician health care professional who is so notified shall make the declaration a part of the declarant's medical records. No witness to the execution of the declaration may, at the time of the execution, be any of the following:

AB287,12 Section 12. 154.03 (2) of the statutes is amended to read:

AB287,6,3 154.03 (2) The department shall prepare and provide copies of the declaration and accompanying information for distribution in quantities to health care professionals persons licensed, certified, or registered under ch. 441, 448, or 455, 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:

AB287,6,4 Declaration to physicians health care professionals

AB287,6,5 (WISCONSIN LIVING WILL)

AB287,6,12 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, physician assistant, or advanced practice registered nurse honor this document as the final expression of my legal right to refuse medical or surgical treatment.

AB287,6,18 1. If I have a TERMINAL CONDITION, as determined by 2 physicians a physician, physician assistant, or advanced practice registered nurse who have has personally examined me, and if a physician who has also personally examined me agrees with that determination, 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:

AB287,6,19 .... YES, I want feeding tubes used if I have a terminal condition.

AB287,6,20 .... NO, I do not want feeding tubes used if I have a terminal condition.

AB287,6,21 If you have not checked either box, feeding tubes will be used.

AB287,7,2 2. If I am in a PERSISTENT VEGETATIVE STATE, as determined by 2 physicians a physician, physician assistant, or advanced practice registered nurse who have has personally examined me, and if a physician who has also personally examined me agrees with that determination, the following are my directions regarding the use of life-sustaining procedures:

AB287,7,4 .... YES, I want life-sustaining procedures used if I am in a persistent vegetative state.

AB287,7,6 .... NO, I do not want life-sustaining procedures used if I am in a persistent vegetative state.

AB287,7,7 If you have not checked either box, life-sustaining procedures will be used.

AB287,7,12 3. If I am in a PERSISTENT VEGETATIVE STATE, as determined by 2 physicians a physician, physician assistant, or advanced practice registered nurse who have has personally examined me, and if a physician who has also personally examined me agrees with that determination, the following are my directions regarding the use of feeding tubes:

AB287,7,13 .... YES, I want feeding tubes used if I am in a persistent vegetative state.

AB287,7,14 .... NO, I do not want feeding tubes used if I am in a persistent vegetative state.

AB287,7,15 If you have not checked either box, feeding tubes will be used.

AB287,7,18 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.

AB287,7,20 ATTENTION: You and the 2 witnesses must sign the document at the same time.

AB287,7,21   Signed ....   Date ....

AB287,7,22   Address ....   Date of birth ....

AB287,8,4 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.

AB287,8,5   Witness signature ....   Date signed ....

AB287,8,6   Print name ....

AB287,8,8   Witness signature ....   Date signed ....

AB287,8,9   Print name ....

AB287,8,11 DIRECTIVES TO ATTENDING PHYSICIAN, PHYSICIAN ASSISTANT, OR ADVANCED PRACTICE REGISTERED NURSE

AB287,8,17 1. This document authorizes the withholding or withdrawal of life-sustaining procedures or of feeding tubes when 2 physicians a physician and another physician, physician assistant, or advanced practice registered nurse, one of whom is the attending physician health care professional, have personally examined and certified in writing that the patient has a terminal condition or is in a persistent vegetative state.

AB287,8,23 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.

AB287,9,4 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, physician assistant, or advanced practice registered nurse who will comply. Refusal or failure to make a good faith attempt to do so constitutes unprofessional conduct.

AB287,9,6 4. If you know that the patient is pregnant, this document has no effect during her pregnancy.

AB287,9,7 * * * * *

AB287,9,10 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:

AB287,9,11 .................................................................

AB287,9,12 .................................................................

AB287,9,13 .................................................................

AB287,13 Section 13. 154.05 (1) (c) of the statutes is amended to read:

AB287,9,18 154.05 (1) (c) By a verbal expression by the declarant of his or her intent to revoke the declaration. This revocation becomes effective only if the declarant or a person who is acting on behalf of the declarant notifies the attending physician health care professional of the revocation.

AB287,14 Section 14. 154.05 (2) of the statutes is amended to read:

AB287,9,23 154.05 (2) Recording the revocation. The attending physician health care professional shall record in the patient's medical record the time, date and place of the revocation and the time, date and place, if different, that he or she was notified of the revocation.

AB287,15 Section 15. 154.07 (1) (a) (intro.) of the statutes is amended to read:

AB287,10,5 154.07 (1) (a) (intro.) No physician health care professional, inpatient health care facility or health care professional person licensed, certified, or registered under ch. 441, 448, or 455 acting under the direction of a physician health care professional may be held criminally or civilly liable, or charged with unprofessional conduct, for any of the following:

AB287,16 Section 16. 154.07 (1) (a) 3. of the statutes is amended to read:

AB287,10,11 154.07 (1) (a) 3. Failing to comply with a declaration, except that failure by a physician health care professional to comply with a declaration of a qualified patient constitutes unprofessional conduct if the physician health care professional refuses or fails to make a good faith attempt to transfer the qualified patient to another physician health care professional who will comply with the declaration.

AB287,17 Section 17. 154.07 (2) of the statutes is amended to read:

AB287,10,22 154.07 (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 health care professional has no effect during the course of the qualified patient's pregnancy. For the purposes of this subchapter, a physician health care professional 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.

AB287,18 Section 18. 154.19 (1) (intro.) of the statutes is amended to read:

AB287,11,2 154.19 (1) (intro.) No person except an attending physician health care professional may issue a do-not-resuscitate order. An attending physician health care professional may issue a do-not-resuscitate order to a patient only if all of the following apply:

AB287,19 Section 19. 154.19 (1) (e) of the statutes is amended to read:

AB287,11,5 154.19 (1) (e) The physician health care professional does not know the patient to be pregnant.

AB287,20 Section 20. 154.19 (2) (a) of the statutes is amended to read:

AB287,11,11 154.19 (2) (a) The attending physician health care professional, or a person directed by the attending physician health care professional, shall provide the patient with written information about the resuscitation procedures that the patient has chosen to forego and the methods by which the patient may revoke the do-not-resuscitate order.

AB287,21 Section 21. 154.19 (2) (b) (intro.) of the statutes is amended to read:

AB287,11,18 154.19 (2) (b) (intro.) After providing the information under par. (a), the attending physician health care professional, or the person directed by the attending physician health care professional, shall document in the patient's medical record the medical condition that qualifies the patient for the do-not-resuscitate order, shall make the order in writing and shall do one of the following, as requested by the qualified patient:

AB287,22 Section 22. 154.21 (2) of the statutes is amended to read:

AB287,11,25 154.21 (2) Recording the revocation. The attending physician health care professional shall be notified as soon as practicable of the patient's revocation and shall record in the patient's medical record the time, date and place of the revocation, if known, and the time, date and place, if different, that he or she was notified of the revocation. A revocation under sub. (1) is effective regardless of when the attending physician health care professional has been notified of that revocation.

AB287,23 Section 23. 154.23 (intro.) of the statutes is amended to read: