In June, a bill was introduced in the Wisconsin State Senate called the “Compassionate Choices” bill. The bill proposes to create a new chapter 156 in the state statutes that would, essentially, allow for physician assisted suicide under certain conditions. The bill is modeled after laws in Oregon, Washington and Vermont (and similar bills have been passed or proposed in 23 other states, plus Washington D.C.). Advocates for these bills feel that people who are suffering should be able to choose for themselves whether they live or die. Opponents feel life is precious and should be preserved at all costs.

The bill creates a statutory form called: “Request for Medication Authorization to End My Life In a Dignified Manner”, which people use to make the request for their physician to prescribe them medication to end their life. The bill requires the patient to follow several steps in order to have the medication administered. 1) the patient must be of sound mind, be 18 or older, and have a terminal disease (defined as incurable and will cause death within 6 months); 2) the individual must orally ask their doctor; 3) Within 15 days of the oral request, must make a request in writing (by filling out a form similar to the statutory form mentioned above), however it cannot be done until a consulting doctor (someone other than the attending physician) examines the patient to confirm that the patient has a terminal disease, is not incapacitated and is making a voluntary and informed decision; 4) After the written request, the patient must again orally request the medication. The request can be revoked at any time.

The bill defines the responsibilities and immunities for physicians when a patient makes this request. The doctor must 1) determine if there is a terminal disease, the patient is not incapacitated and is making the request voluntarily; 2) inform the patient of the diagnosis, risks/results of taking the medication, and alternatives; 3) refer the patient to counseling if the doctor believes the patient may be suffering from a psychiatric/psychological disorder including depression; 4) Ask that the patient notify his or her next of kin (it is not required that the patient do it, but the doctor must ask them to); 5) Inform the patient that the request can be revoked; 6) prior to filling the prescription must ensure the patient followed the steps required by the patient, that more than 48 hours have passed since the 2nd oral request, and that the decision is an informed one; 7) The physician must document the requests, the determinations made in (1), the determinations of the consulting physician, certify that the patient was informed the request could be revoked and a certification that all steps were properly taken; 8) The doctor may refuse to fulfill the request but must make a good faith attempt to transfer the patient to another physician to fulfill the request.

A doctor cannot be charged with criminal, civil or unprofessional conduct for: 1) failing to fulfill a request (except it is unprofessional to not refer the patients care), 2) filling a request, 3) failing to act on a revocation unless they have actual knowledge.

Finally, the bill states that requesting the medication does not constitute attempted suicide and taking the medication does not constitute suicide.

This is a truly fascinating piece of proposed legislation, and one that I presume will either die quietly without a vote, or be subjected to a great amount of protest and scrutiny. Any time someone’s life or death is involved, politics becomes emotionally (and often religiously) charged, even though the reasons for outrage aren’t always clear cut. In addition, the bill was proposed by democratic senators in a republican controlled legislature, with a conservative governor. The likelihood of success seems small.

Aside from the politics, the bill creates many hoops that someone would need to jump through (which makes sense), and creates several potential timing issues that would limit a patient from doing everything correctly in order to be prescribed the medication. Other problems I see with the bill being utilized is the requirement that the patient be competent. I’m not a medical professional, but in the vast majority of cases where someone has a terminal illness, the person is not competent, which would automatically remove the ability to do this. Obviously, an incompetent person should not be making important decisions, but I do think an extension to this bill would involve added terminology to Health Care Powers of Attorney or Declaration to Physicians that would invoke this right. I would also think that most people in this situation, even if competent, would be suffering from some form of depression, which would apparently prevent their wishes from being granted. Due to the nature of the bill, I do think the writers did a pretty good job of trying to cover all of their bases. The decision to take one’s life is not something that should necessarily be easily or quickly done. Whether the bill accomplishes what it seeks to, or if it becomes law, is something we will have to wait to see.

A recently decided Wisconsin Supreme Court case has made it easier (slightly) for grandparents, great-grandparents and stepparents to receive court-ordered visitation of their grandchildren, great-grandchildren or step-children. The case of In re Marriage of Meister, 367 Wis. 2d 447 (2016) removed a previously held rule that a grandparent, great-grandparent, or stepparent needed to prove a parent-child relationship in order to secure visitation rights under Wisconsin Statute §767.43(1). The statute provides that certain people can apply to a court for visitation rights of children. Previously, the court had decided that parents, grandparents and stepparents needed to prove a parent-child relationship. The Meister court decided on a different statutory interpretation, deciding that only “other persons” needed to prove a parent-child relationship, and the clause did not apply to grandparents, great-grandparents or stepparents. The ruling makes sense from a statutory interpretation and legislative history standpoint.

I mentioned earlier that this ruling made it only slightly easier for grandparents to be granted visitation rights. This is because in general, family law is not at all black and white. Of all areas of the law I’ve ever practiced in, family law is the least predictable and most prone to case-by-case analysis and guesswork. Proving a parent-child relationship, especially when each parent-child relationship varies by family, was not typically the biggest hurdle grandparents faced when trying to get visitation of their grandchildren. There are two other monumental hurdles. First, there needs to be evidence that a set visitation schedule with a non-parent is in the child’s best interest. Second, when determining the best interest, the court must give special weight to a fit parent’s opinions regarding the child’s best interest as part of any best interest determination. This requirement was first determined by the U.S. Supreme Court in Troxel v. Granville: “The Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” 530 U.S. at 66, 120 S.Ct. 2054.

The Meister case was interesting for two reasons. First, the grandchildren, not the grandmother, were the ones that appealed. The concurring opinion noted that had the issue been brought up, the case would have been dismissed because the grandchildren didn’t have standing to appeal. The grandchildren do not have a right to ask the court to be granted grandparent visitation under this statute, so they could not appeal a ruling that denied it. The issue was not addressed by either party, and thus the court didn’t address it. Second, the grandmother actually passed away before the appeal was filed. Generally, when this happens, the case is moot (meaning there is no reason to decide it, because nobody will benefit from the ruling), and the appeal would be dismissed. However, the parties allowed the case to move forward because it is an issue that is constantly in front of courts on grandparent visitation cases. What we don’t know is whether the grandmother in this case would have actually been granted visitation or not. This case didn’t actually grant the grandmother visitation, and wouldn’t have even if she had still been alive. It merely decided she didn’t need to prove a parent-child relationship. The circuit court would have needed to decide if it was in the children’s best interest after giving special weight to the parent’s opinion.

Practically, unless there is a serious problem with one or both parents, a grandparent still has a difficult time making a case that their view of what is in a child’s best interest is correct versus a parent. In addition, a grandparent needs to consider whether their personal feelings, and set time with their grandchildren, are more important than their relationship with their own child, or their child’s spouse. I’ve never seen a case like this where the family came out on the other side unscathed. In my experience, the best interests of the child are almost never served in a courtroom.