November 15, 2023 - Introduced by Senators Knodl and Bradley, cosponsored by Representatives Wichgers, Ortiz-Velez, Armstrong, Behnke, Bodden, Brandtjen, Donovan, Murphy, Mursau, O’Connor, Rettinger and Rozar. Referred to Committee on Health.
SB682,,22An Act to create chapter 56 of the statutes; relating to: surrogate decision-making. SB682,,33Analysis by the Legislative Reference Bureau This bill allows for next of kin to be a surrogate decision maker for a patient in a hospital who is incapacitated in certain circumstances. Under the bill, when a hospital patient is incapacitated, the attending physician for the patient must make a reasonable inquiry as to whether the patient has a guardian of the person or an advanced planning instrument that applies to the patient’s condition. For purposes of the bill, either two physicians, a physician and an individual who possesses a resident education license, or a physician and a licensed advanced practice clinician, who have personally examined the patient, must make the determination and sign a statement specifying that the patient is incapacitated.
Under the bill, if there is no guardian or applicable advanced planning instrument, the attending physician must make a reasonable inquiry as to the availability of a surrogate decision maker by contacting any family member identified in the patient’s health care records or other personal effects. The bill requires the attending physician to attempt to contact that person by telephone within 24 hours after a determination is made that the patient is incapacitated. Under the bill, the following individuals, in the following order of priority, may act as a surrogate decision maker: 1) the patient’s spouse or domestic partner; 2) an adult child of the patient or, if there is more than one adult child, a majority of the adult children who are available for consultation within a reasonable period of time; 3) a parent of the patient; 4) an adult sibling of the patient or, if there is more than one adult sibling, a majority of the patient’s adult siblings who are available for consultation within a reasonable period of time; 5) a grandparent of the patient; 6) an adult grandchild of the patient or, if there is more than one adult grandchild, a majority of the patient’s adult grandchildren who are available for consultation within a reasonable period of time; or 7) a close friend or relative of the patient if the person is at least 18 years of age, has maintained sufficient regular contact with the patient to be familiar with the patient’s activities, health, and beliefs, and has exhibited special care and concern for the patient. The bill provides that if a willing surrogate decision maker is identified, the attending physician must record the surrogate decision maker’s information in the patient health records. The bill includes provisions for recording a replacement surrogate decision maker if the initial person identified becomes unavailable.
The bill provides that a surrogate decision maker may, if made in accordance with certain requirements, make decisions for the patient concerning the patient’s care, treatment, or therapies without involving the courts or legal process, but a surrogate decision maker may not make a decision to continue or to forego life-sustaining treatment. Under the bill, any decision made by a surrogate decision maker must be recorded in consultation with the attending physician and must conform as closely as possible to what the patient would have decided under the circumstances, taking into account evidence that includes the patient’s personal, philosophical, religious, and moral beliefs and ethical values relative to the purpose of life, sickness, medical procedures, suffering, and death. The bill requires that the surrogate decision maker consult any available evidence of the patient’s wishes, including an unrevoked advanced planning instrument that is not valid due to a technical deficiency or is not applicable to the patient’s condition. The bill provides that the absence of an advanced planning instrument does not give rise to any presumption as to the patient’s preferences regarding health care decisions. Under the bill, if the patient’s wishes are unknown and remain unknown after reasonable efforts to discern them, the surrogate decision maker must make decisions on the basis of the patient’s best interests as determined by the surrogate decision maker. In determining the patient’s best interests, the surrogate decision maker must consult with the patient’s primary care provider, if any, and weigh all other information, including the views of family and friends, that the surrogate decision maker believes the patient would have considered if able to act for himself or herself. The bill provides that a surrogate decision maker must exercise reasonable diligence and, to the extent feasible under the circumstances, provide to all other individuals known to that individual, including certain specific individuals described in the bill, notice that the patient is incapacitated and of the right for individuals to apply for temporary guardianship.
The bill provides that health care providers and other persons may rely on any decision or direction made by the surrogate decision maker that is not clearly contrary to the provisions of the bill to the same extent and with the same effect as though it was made by the patient when the patient was not incapacitated. The bill establishes that in the absence of actual knowledge to the contrary, a person may presume that the acts of the surrogate decision maker conform to the requirements under the bill.
Under the bill, a health care provider who relies on and carries out decisions made by a surrogate decision maker and acts with due care and in accordance with the provisions of the bill may not be subject to any claim, any criminal prosecution, or discipline for unprofessional conduct on the basis of the lack of patient consent. The bill does not prohibit a claim against a health care provider or facility based on negligence relating to the performance of the health care provider’s duties or the carrying out of any instructions of the surrogate decision maker, nor does the bill provide immunity from civil liability if the health care provider or other person has actual knowledge either that the surrogate decision maker is not entitled to act at the time an action is taken or that any particular action or inaction by the surrogate decision maker is otherwise contrary to the requirements under the bill.
The bill provides that a surrogate decision maker who acts with due care and in accordance with the provisions of the bill is not subject to criminal prosecution or any claim based on the lack of surrogate authority or based on the surrogate decision maker’s failure to act. The bill also provides that a surrogate decision maker may not be liable for any claim solely because he or she may benefit, has individual or conflicting interests in relation to the care and affairs of the patient, or acts in a different manner with respect to the patient’s care or interests from what the surrogate decision maker would do with respect to his or her own care or interests.
SB682,,44The people of the state of Wisconsin, represented in senate and assembly, do enact as follows: SB682,15Section 1. Chapter 56 of the statutes is created to read: SB682,,87HEALTH CARE SURROGATE
8DECISION-MAKING SB682,,9956.01 Definitions. In this chapter: SB682,,1010(1) “Advanced planning instrument” means any of the following: SB682,,1111(a) A declaration, as defined in s. 154.02 (1). SB682,,1212(b) A do-not-resuscitate order, as defined in s. 154.17 (2). SB682,,1313(c) A power of attorney for health care, as defined in s. 155.01 (10). SB682,,1414(2) “Attending physician” means a physician licensed under subch. II of ch. 448 who is selected by or assigned to the patient and who has primary responsibility for treatment and care of the patient. If more than one physician shares primary responsibility for treatment and care of the patient, any of those physicians may act as the attending physician under this chapter. SB682,,1515(3) “Guardian of the person” has the meaning given in s. 54.01 (12).