Wisconsin
Assembly Bill 67 (2003)
Note: This bill was superseded by an
amendment proposed by Rep. Hundertmark
Analysis by the
Legislative Reference Bureau
2003 - 2004 LEGISLATURE
February 18, 2003 -
Introduced by Representatives HUNDERTMARK, STASKUNAS,
ALBERS, BIES, J. FITZGERALD, FREESE, GROTHMAN, GUNDERSON, GUNDRUM, HAHN,
HINES, HUEBSCH, KERKMAN, KESTELL, KRAWCZYK, KREIBICH, LADWIG, F. LASEE, M.
LEHMAN, LEMAHIEU, LOEFFELHOLZ, MCCORMICK, D. MEYER, MONTGOMERY, NASS, OTT,
OWENS, PETROWSKI, RHOADES, STONE, SUDER, UNDERHEIM, VAN ROY, VRAKAS, VUKMIR,
WEBER, WIECKERT, J. WOOD and ZIEGELBAUER, cosponsored by Senators ROESSLER,
REYNOLDS, BRESKE, COWLES, S. FITZGERALD, HARSDORF, KANAVAS, KEDZIE, A.
LASEE, LAZICH, LEIBHAM, SCHULTZ, STEPP and WELCH.
Referred to Committee on Labor.
AN ACT to renumber and amend 111.337 (1), 253.09
(1), 441.06 (6) and 448.03 (5) (a); to amend 154.03 (1) (intro.),
155.60 (3), 253.09 (title), 253.09 (2), 253.09 (3), 253.09 (4) (a), 253.09
(4) (b) 1., 253.09 (4) (b) 2., 441.06 (title) and 448.03 (5)(title);
and to create 111.337 (1g), 111.337 (1r) (b), 253.09 (1g), 253.09
(1r) (a) 1. to 6., 253.09 (5), 441.06 (6) (a), 441.06 (6) (b) 1. to 6.,
441.06 (7), 441.06 (8), 448.03 (5) (ag), 448.03 (5) (am), 448.03 (5) (ao),
448.03 (5) (ar) 1. to 6. and450.135 of the statutes; relating to: employment
discrimination based on creed; exemption from liability and discipline for
health care providers and hospital employees who refuse to participate in
sterilization, abortion, assisted suicide, and other procedures on moral or
religious grounds; and power of attorney for health care instruments and
patient declarations regarding the withholding or withdrawal of
life-sustaining procedures or feeding tubes.
The people of the state of Wisconsin, represented in senate and
assembly, do enact as follows:
SECTION 1. 111.337 (1) of the statutes is renumbered 111.337 (1r)
(intro.) and amended to read:
111.337 (1r) (intro.) Employment discrimination
because of creed includes, but is not limited to, any of the following:
(a) Refusing to reasonably accommodate an employee's
or prospective employee's religious observance or practice unless the
employer can demonstrate that the accommodation would pose an undue hardship
on the employer's program, enterprise, or business.
SECTION 2. 111.337 (1g) of the statutes is created to read:
111.337 (1g) In this section:
(a) "Human embryo" means a human
organism that is derived by fertilization, parthenogenesis, cloning, or any
other means from one or more human gametes or human diploid cells. "Human
embryo" includes a zygote but does not include a human organism at or beyond
the stage of development at which the major body structures are present.
(b) "Participate in" means to
perform, assist in, recommend, counsel in favor of, make referrals for,
prescribe, dispense, or administer drugs for, or otherwise promote,
encourage, or aid.
SECTION 3. 111.337 (1r) (b) of the statutes is created to read:
111.337 (1r) (b) Discriminating against an employee or prospective
employee by engaging in any of the actions prohibited under s. 111.322 on
the basis of the employee's or prospective employee's refusal, or statement
of an intention to refuse, whether or not in writing, based on his or her
creed, to participate in any of the following:
1. A sterilization procedure.
2. An abortion, as defined in s. 253.10 (2) (a).
3. An experiment or medical procedure involving any
of the following:
a. The destruction of a human embryo.
b. A human embryo or unborn child, at any stage of development, in
which the experiment or procedure is not related to the beneficial
treatment of the human embryo or unborn child.
4. A procedure, including a transplant procedure,
that uses fetal tissue or organs other than fetal tissue or organs from a
stillbirth, spontaneous abortion, or miscarriage.
5. The withholding or withdrawal of nutrition or
hydration, if the withholding or withdrawal of nutrition or hydration would
result in the patient's death from malnutrition or dehydration, or
complications of malnutrition or dehydration, rather than from the
underlying terminal illness or injury, unless the administration of
nutrition or hydration is medically contraindicated.
6. An act that intentionally causes or assists in
causing the death of an individual, such as by assisted suicide, euthanasia,
or mercy killing.
SECTION 4. 154.03 (1) (intro.) of the statutes is amended to read:
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 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 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 of the existence of the declaration. An
attending physician who is so notified shall immediately review the
declaration and, if the physician intends to invoke his or her rights under
s. 253.09, shall, as soon as possible, inform the declarant orally and in
writing of that intent and of the physician's concerns, if any, about the
declaration. An attending physician who is so notified shall also 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:
SECTION 5. 155.60 (3) of the statutes is amended to read:
155.60 (3) Upon receipt of a power of attorney for
health care instrument or a statement of incapacity under s. 155.05 (2), a
health care facility or health care provider shall acknowledge this receipt
in writing and, if the principal is a patient of the health care provider,
the health care provider shall include the instrument or the statement in
the medical record of the principal. In addition, if the health care
provider is a physician and the principal is a patient of the physician, the
physician shall immediately review the instrument or statement and, if the
physician intends to invoke his or her rights under s. 253.09, shall, as
soon as possible, inform the principal orally and in writing of that intent
and of the physician's concerns, if any, about the instrument or statement.
SECTION 6. 253.09 (title) of the statutes is amended to read:
253.09 (title) Refusal to participate in certain practices; no
liability; no discrimination.
SECTION 7. 253.09 (1) of the statutes is renumbered 253.09 (1r) (a)
(intro.) and amended to read:
253.09 (1r) (a) (intro.) No hospital is required to
admit any patient or to allow the use of the hospital facilities for the
purpose of performing any of the following:
(b) A physician or any other person who is a member
of or associated with the staff of a hospital, or any employee of a hospital
in the performance of an activity specified in par. (a) 1. to 6. has been
authorized, who, in writing, refuses, or states an intention to refuse, to
participate in the activity on moral or religious grounds may not be
required to participate in the activity.
(c) A physician or any other person who is a member
of or associated with the staff of a hospital, or any employee of a
hospital, is immune from liability for any damage caused by, and may not be
subjected to any disciplinary or recriminatory action based on the refusal
of the person to participate in an activity specified in par. (a) 1. to 6.
on moral or religious grounds.
SECTION 8. 253.09 (1g) of the statutes is created to read:
253.09 (1g) In this section:
(a) "Human embryo" means a human
organism that is derived by fertilization, parthenogenesis, cloning, or any
other means from one or more human gametes or human diploid cells. "Human
embryo" includes a zygote but does not include a human organism at or beyond
the stage of development at which the major body structures are present.
(b) "Participate in" means to
perform, assist in, recommend, counsel in favor of, make referrals for,
prescribe, dispense, or administer drugs for, or otherwise promote,
encourage, or aid.
SECTION 9. 253.09 (1r) (a) 1. to 6. of the statutes are created to read:
253.09 (1r) (a) 1. A sterilization procedure.
2. An abortion, as defined in s. 253.10 (2) (a).
3. An experiment or medical procedure involving any
of the following:
a. The destruction of a human embryo.
b. A human embryo or unborn child, at any stage of
development, in which the experiment or procedure is not related to the
beneficial treatment of the human embryo or unborn child.
4. A procedure, including a transplant procedure,
that uses fetal tissue or organs other than fetal tissue or organs from a
stillbirth, spontaneous abortion, or miscarriage.
5. The withholding or withdrawal of nutrition or
hydration, if the withholding or withdrawal of nutrition or hydration would
result in the patient's death from malnutrition or dehydration, or
complications of malnutrition or dehydration, rather than from the
underlying terminal illness or injury, unless the administration of
nutrition or hydration is medically contraindicated.
6. An act that intentionally causes or assists in
causing the death of an individual, such as by assisted suicide, euthanasia,
or mercy killing.
SECTION 10. 253.09 (2) of the statutes is amended to read:
253.09 (2) A hospital or employee of a hospital is
immune from liability for any damage caused by a refusal to participate in
an activity specified in sub. (1r) (a) 1. to 6., if the refusal is based on
religious or moral precepts.
SECTION 11. 253.09 (3) of the statutes is amended to read:
253.09 (3) No hospital, school, or employer may
discriminate against any person with regard to admission, hiring or firing,
tenure, term, condition, or privilege of employment, student status, or
staff status on the ground that the person refuses or states an intention to
refuse, whether or not in writing, to participate in an activity specified
in sub. (1r) (a) 1. to 6., if the refusal is based on religious or moral
precepts.
SECTION 12. 253.09 (4) (a) of the statutes is amended to read:
253.09 (4) (a) Such individual to participate in an
activity specified in sub. (1r) (a) 1. to 6., if the individual's
participation in the activity is contrary to the individual's religious
beliefs or moral convictions; or
SECTION 13. 253.09 (4) (b) 1. of the statutes is amended to read:
253.09 (4) (b) 1. Make its facilities available for
an individual to participate in an activity specified in sub. (1r) (a) 1. to
6., if the entity prohibits the activity from taking place in the facilities
on the basis of religious beliefs or moral convictions; or
SECTION 14. 253.09 (4) (b) 2. of the statutes is amended to read:
253.09 (4) (b) 2. Provide any personnel to
participate in an activity specified in sub. (1r) (a) 1. to 6., if the
activity is contrary to the religious beliefs or moral convictions of the
personnel.
SECTION 15. 253.09 (5) of the statutes is created to read:
253.09 (5) A person who is adversely affected by, or
who reasonably may be expected to be adversely affected by, conduct that is
in violation of this section may bring a civil action for injunctive relief,
including reinstatement, or damages, including damages for emotional or
psychological distress, or both injunctive relief and damages. In an action
under this subsection, the court shall award reasonable attorney fees,
notwithstanding s. 814.04 (1), to a person who obtains injunctive relief, an
award of damages, or both.
SECTION 16. 441.06 (title) of the statutes is amended to read:
441.06 (title) Licensure; civil liability and
disciplinary exemption.
SECTION 17. 441.06 (6) of the statutes is renumbered 441.06 (6) (b)
(intro.) and amended to read:
441.06 (6) (b) (intro.) A person licensed as a
registered nurse under this section is immune from liability for any damage
caused by his or her refusal to perform, assist in, recommend, counsel in
favor of, make referrals for, prescribe, dispense, or administer drugs for,
or otherwise promote, encourage, or aid any of the following, if the refusal
is based on religious or moral precepts.:
SECTION 18. 441.06 (6) (a) of the statutes is created to read:
441.06 (6) (a) In this subsection, "human embryo"
means a human organism that is derived by fertilization, parthenogenesis,
cloning, or any other means from one or more human gametes or human diploid
cells. "Human embryo" includes a zygote but does not include a human
organism at or beyond the stage of development at which the major body
structures are present.
SECTION 19. 441.06 (6) (b) 1. to 6. of the statutes are created to read:
441.06 (6) (b) 1. A sterilization procedure.
2. An abortion, as defined in s. 253.10 (2) (a).
3. An experiment or medical procedure involving any
of the following:
a. The destruction of a human embryo.
b. A human embryo or unborn child, at any stage of
development, in which the experiment or procedure is not related to the
beneficial treatment of the human embryo or unborn child.
4. A procedure, including a transplant procedure,
that uses fetal tissue or organs other than fetal tissue or organs from a
stillbirth, spontaneous abortion, or miscarriage.
5. The withholding or withdrawal of nutrition or
hydration, if the withholding or withdrawal of nutrition or hydration would
result in the patient's death from malnutrition or dehydration, or
complications of malnutrition or dehydration, rather than from the
underlying terminal illness or injury, unless the administration of
nutrition or hydration is medically contraindicated.
6. An act that intentionally causes or assists in
causing the death of an individual, such as by assisted suicide, euthanasia,
or mercy killing.
SECTION 20. 441.06 (7) of the statutes is created to read:
441.06 (7) A person licensed as a registered nurse
under this section who, in writing, refuses, or states an intention to
refuse, on moral or religious grounds to engage in a practice of
professional nursing that is related to an activity specified in sub. (6)
(b) 1. to 6. may not be required to engage in the practice with respect to
the activity and may not be disciplined by the board or the department for
refusing or stating an intention to refuse to engage in the practice with
respect to the activity.
SECTION 21. 441.06 (8) of the statutes is created to read:
441.06 (8) A person who is adversely affected by, or
who reasonably may be expected to be adversely affected by, conduct that is
in violation of sub. (7) may bring a civil action for injunctive relief,
including reinstatement, or damages, including damages for emotional or
psychological distress, or both injunctive relief and damages. In an action
under this subsection, the court shall award reasonable attorney fees,
notwithstanding s. 814.04 (1), to a person who obtains injunctive relief, an
award of damages, or both.
SECTION 22. 448.03 (5) (title) of the statutes is amended to read:
448.03 (5) (title) CIVIL LIABILITY AND DISCIPLINARY EXEMPTION;
CERTAIN MEDICAL PROCEDURES AND REPORTS.
SECTION 23. 448.03 (5) (a) of the statutes is renumbered 448.03 (5) (ar)
(intro.) and amended to read:
448.03 (5) (ar) (intro.) A person licensed or
certified under this subchapter is immune from liability for any damage
caused by the person's refusal to perform, assist in, recommend, counsel in
favor of, make referrals for, prescribe, dispense, or administer drugs for,
or otherwise promote, encourage, or aid any of the following if the refusal
is based on religious or moral precepts:
SECTION 24. 448.03 (5) (ag) of the statutes is created to read:
448.03 (5) (ag) In this subsection, "human embryo"
means a human organism that is derived by fertilization, parthenogenesis,
cloning, or any other means from one or more human gametes or human diploid
cells. "Human embryo" includes a zygote but does not include a human
organism at or beyond the stage of development at which the major body
structures are present.
SECTION 25. 448.03 (5) (am) of the statutes is created to read:
448.03 (5) (am) A person licensed or certified under
this subchapter who, in writing, refuses, or states an intention to refuse,
on moral or religious grounds to engage in a practice within the scope of
his or her license or certification that is related to an activity specified
in par. (ar) 1. to 6. may not be required to engage in the practice with
respect to the activity and, notwithstanding ss. 154.07 (1) (a) 3. and
155.50 (1) (b), may not be disciplined by the board or the department for
refusing or stating an intention to refuse to engage in the practice with
respect to the activity, including refusing or stating an intention to
refuse to transfer a patient to another physician who will comply with a
declaration, as defined in s. 154.02 (1), instrument for power of attorney
for health care, as defined in s. 155.01 (10), or health care decision, as
defined in s. 155.01 (5), of a health care agent, as defined in s. 155.01
(4). This paragraph does not apply to the refusal to make a good faith
attempt to transfer a declarant with incapacity, as defined in s. 155.01 (8)
and with a terminal condition, as defined in s. 154.01 (8), to another
physician who will comply with the declaration, as defined in s. 154.02 (1),
of the declarant.
SECTION 26. 448.03 (5) (ao) of the statutes is created to read:
448.03 (5) (ao) A person who is adversely affected
by, or who reasonably may be expected to be adversely affected by, conduct
that is in violation of par. (am) may bring a civil action for injunctive
relief, including reinstatement, or damages, including damages for emotional
or psychological distress, or both injunctive relief and damages. In an
action under this paragraph, the court shall award reasonable attorney fees,
notwithstanding s. 814.04 (1), to a person who obtains injunctive relief, an
award of damages, or both.
SECTION 27. 448.03 (5) (ar) 1. to 6. of the statutes are created to read:
448.03 (5) (ar) 1. A sterilization procedure.
2. An abortion, as defined in s. 253.10 (2) (a).
3. An experiment or medical procedure involving any
of the following:
a. The destruction of a human embryo.
b. A human embryo or unborn child, at any stage of
development, in which the experiment or procedure is not related to the
beneficial treatment of the human embryo or unborn child.
4. A procedure, including a transplant procedure,
that uses fetal tissue or organs other than fetal tissue or organs from a
stillbirth, spontaneous abortion, or miscarriage.
5. The withholding or withdrawal of nutrition or
hydration, if the withholding or withdrawal of nutrition or hydration would
result in the patient's death from malnutrition or dehydration, or
complications of malnutrition or dehydration, rather than from the
underlying terminal illness or injury, unless the administration of
nutrition or hydration is medically contraindicated.
6. An act that intentionally causes or assists in
causing the death of an individual, such as by assisted suicide, euthanasia,
or mercy killing.
SECTION 28. 450.135 of the statutes is created to read:
450.135 Pharmacist's refusal to be involved in
certain activities.
(1) In this section, "human embryo" means a human
organism that is derived by fertilization, parthenogenesis, cloning, or any
other means from one or more human gametes or human diploid cells. "Human
embryo" includes a zygote but does not include a human organism at or beyond
the stage of development at which the major body structures are present.
(2) A person licensed as a pharmacist under this
chapter is immune from liability for any damage caused by his or her refusal
to be involved in the performance of, assistance in, recommendation of,
counseling in favor of, making referrals for, prescribing, dispensing, or
administering drugs for, or otherwise promoting, encouraging, or aiding any
of the following, if the refusal is based on religious or moral precepts:
(a) A sterilization procedure.
(b) An abortion, as defined in s. 253.10 (2) (a).
(c) An experiment or medical procedure involving any
of the following:
1. The destruction of a human embryo.
2. A human embryo or unborn child, at any stage of
development, in which the experiment or procedure is not related to the
beneficial treatment of the human embryo or unborn child.
(d) A procedure, including a transplant procedure,
that uses fetal tissue or organs other than fetal tissue or organs from a
stillbirth, spontaneous abortion, or miscarriage.
(e) The withholding or withdrawal of nutrition or
hydration, if the withholding or withdrawal of nutrition or hydration would
result in the patient's death from malnutrition or dehydration, or
complications of malnutrition or dehydration, rather than from the
underlying terminal illness or injury, unless the administration of
nutrition or hydration is medically contraindicated.
(f) An act that intentionally causes or assists in
causing the death of an individual, such as by assisted suicide, euthanasia,
or mercy killing.
(3) (a) A person licensed as a pharmacist under this
chapter who, in writing, refuses, or states an intention to refuse, on moral
or religious grounds to engage in a practice of pharmacy that is related to
an activity specified in sub. (2) (a) to (f) may not be required to engage
in the practice with respect to the activity and may not be disciplined by
the board or department for refusing or stating an intention to refuse to
engage in the practice with respect to the activity.
(b) A person who is adversely affected by, or who
reasonably may be expected to be adversely affected by, conduct that is in
violation of par. (a) may bring a civil action for injunctive relief,
including reinstatement, or damages, including damages for emotional or
psychological distress, or both injunctive relief and damages. In an action
under this paragraph, the court shall award reasonable attorney fees,
notwithstanding s. 814.04 (1), to a person who obtains injunctive relief, an
award of damages, or both.
SECTION 29.0 Initial applicability.
(1) The treatment of sections 111.337 (1), (1g), and (1r) (b), 253.09
(title), (1), (1g), (1r) (a) 1. to 6., (2), (3), (4) (a) and (b) 1. and 2.,
and (5), 441.06 (title), (7), and (8), 448.03 (5) (title), (a), (ag), (am),
(ao), and (ar) 1. to 6., and 450.135 of the statutes, the renumbering and
amendment of section 441.06 (6) of the statutes, and the creation of section
441.06 (6) (a) and (b) 1. to 6. of the statutes first apply to refusals or
statements of an intention to refuse that are made on the effective date of
this subsection.
(2) The treatment of section 154.03 (1) of the statutes first applies to
notifications made on the effective date of this subsection. (3) The
treatment of section 155.60 (3) of the statutes first applies to power of
attorney for health care instruments and statements of incapacity received
on the effective date of this subsection.
This bill makes changes to current law regarding: 1) employment
discrimination based on creed; 2) refusals of certain health care providers
and hospital employees to participate in certain procedures on moral or
religious grounds; and 3) duties of physicians regarding power of attorney
for health care instruments and patient declarations authorizing the
withholding or withdrawal of life-sustaining procedures or feeding tubes.
Employment discrimination based on creed. Under current law, with certain
exceptions, an employer may not engage in employment discrimination based on
creed. "Creed" is defined as a system of religious beliefs, including moral
or ethical beliefs about right and wrong, that a person sincerely holds with
the strength of traditional religious views. Employment discrimination based
on creed is defined to include refusing to reasonably accommodate an
employee's or prospective employee's religious observances or practices
unless the employer can demonstrate that the accommodation would pose an
undue hardship.
This bill expands the definition of employment discrimination based on
creed to include discriminating against an employee or prospective employee
on the basis of his or her refusal, based on creed, to participate in any of
the following activities:
1) sterilization procedures; 2) abortions; 3) experiments or medical
procedures that involve the destruction of a human embryo or that involve a
human embryo or unborn child but do not relate to the beneficial treatment
of the human embryo or unborn child; 4) procedures using fetal tissue or
organs other than fetal tissue or organs from a stillbirth, spontaneous
abortion, or miscarriage; 5) withholding or withdrawing nutrition or
hydration under certain circumstances; or 6) acts intentionally causing or
assisting in the death of an individual, including assisted suicide,
euthanasia, or mercy killing. There is no exception for an employer to show
that the refusal poses an undue hardship.
Refusals to participate in procedures on moral or religious grounds.
Under current law, hospitals, certain health care professionals and
hospital employees may not, under certain circumstances, be required to
participate in procedures involving sterilization or the removal of a human
embryo or fetus.
Specifically, a hospital may not be required to admit a patient or allow
the use of its facilities for such a procedure. In addition, physicians and
other hospital employees who object, in writing, to participating in such a
procedure on moral or religious grounds may not be disciplined for refusing
to participate in the procedure. Also, a hospital, school, or employer may
not take any disciplinary action regarding employment, staff, or student
status against a person who refuses to participate in such a procedure if
the refusal is based on moral or religious precepts. Finally, under current
law, a hospital and the following persons are exempt from liability for
damages that result from a refusal to perform such a procedure if the
refusal is based on religious or moral precepts: persons employed by or
associated with the staff of a hospital, physicians, and other health care
professionals licensed or certified by the Medical Examining Board in the
Department of Regulation and Licensing (DRL) and registered nurses licensed
by the Board of Nursing in DRL.
This bill expands all of the provisions described above regarding
hospitals, health care professionals, and hospital employees to include a
refusal to participate, based on moral or religious grounds, in any of the
six activities described above with respect to employment discrimination
based on creed. In addition, the bill allows a person who is adversely
affected by conduct that violates these provisions to bring a civil action
for injunctive relief, damages, and attorneys fees. Also, the bill provides
that pharmacists licensed by the Pharmacy Examining Board in DRL are exempt
from liability for damages that result from a refusal to participate in any
of the six activities if the refusal is based on religious or moral
precepts. In addition, the bill changes the exemptions from liability under
current law for physicians and other health care professionals licensed or
certified by the Medical Examining Board and registered nurses licensed by
the Board of Nursing so that they are consistent with the exemption under
the bill for pharmacists.
Also, the bill specifies that the Medical Examining Board, Board of
Nursing, Pharmacy Examining Board, and DRL may not take any disciplinary
action against any of the following who, in writing, refuse, or state an
intention to refuse, to participate in any of the six activities if the
refusal is based on moral or religious grounds: a physician or other health
care professional licensed or certified by the Medical Examining Board, a
registered nurse licensed by the Board of Nursing, or a pharmacist licensed
by the Pharmacy Examining Board. In addition, the bill allows a physician,
registered nurse, or pharmacist who is adversely affected by conduct that
violates this prohibition to bring a civil action for injunctive relief,
damages, and attorneys fees.
Finally, under the bill, the Medical Examining Board may not take
disciplinary action against a physician who makes such a refusal even if the
physician refuses to transfer a patient who has executed a declaration
authorizing the withholding or withdrawal of life-sustaining procedures or
feeding tubes, or who has executed a power of attorney for health care
instrument consenting to the withholding or withdrawal of feeding tubes, to
another physician who will comply with the declaration or instrument.
However, under the bill, the Medical Examining Board may take disciplinary
action against a physician who makes such a refusal if the physician refuses
to transfer an incapacitated, terminally ill patient who has executed such a
declaration.
Power of attorney for health care instruments and patient declarations.
Under the bill, a physician who receives a power of attorney for health
care instrument described above, or who is notified that a patient has
executed a declaration described above, must immediately review the
instrument or declaration and, if the physician intends to refuse to
participate in any of the six activities, must, as soon as possible, inform
the patient, orally and in writing, about the refusal and about any concerns
that the physician has about the instrument or declaration. Similar
requirements apply if a physician receives a statement of incapacity
regarding a patient who has executed a power of attorney for health care
instrument described above. In such cases, the physician must immediately
review the statement and, if the physician intends to refuse to participate
in any of the six activities, must, as soon as possible, inform the
patient's principal, orally and in writing, about the refusal and about any
concerns regarding the statement.
For further information see the state fiscal estimate, which will be
printed as an appendix to this bill.