REPORT TITLE:
Advance Health Care Directive


DESCRIPTION:
Prohibits an agent, guardian, or surrogate from consenting to or
ordering physician-assisted death or withholding or withdrawing
nutrition, hydration, or medication or action or inaction that
would likely lead to death.  Prohibits certain persons from
acting as surrogates.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2784
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO THE UNIFORM HEALTH-CARE DECISIONS ACT.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The legislature finds that the decision to end
 
 2 one's life is a personal decision that cannot and should not be
 
 3 delegated to another person.  The current law allows persons who
 
 4 may not even know a patient, or who may be employed by the
 
 5 facility in which the patient resides, to decide to end the
 
 6 patient's life.  All human life has value and must be respected.
 
 7 Allowing a health care facility to terminate a patient for
 
 8 financial reasons is contrary to the principles upon which the
 
 9 State of Hawaii is based:  Ua mau ke ea o ka 'aina i ka pono.
 
10 The poor, the homeless, those without friends and family, should
 
11 not be sacrificed on the altar of reduced health costs or for the
 
12 purpose of increasing health care profits.  We must care for our
 
13 own.
 
14      SECTION 2.  Section 327E-3, Hawaii Revised Statutes, is
 
15 amended by amending subsection (b) to read as follows:
 
16      "(b)  An adult or emancipated minor may execute a power of
 
17 attorney for health care, which may authorize the agent to make
 
18 any health-care decision the principal could have made while
 
19 having capacity[.]; provided, however, that no agent, surrogate,
 

 
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 1 or guardian shall have the power to consent to or order
 
 2 physician-assisted death, withholding or withdrawal of natural or
 
 3 artificial nutrition and hydration, withholding or withdrawal of
 
 4 medications, or any action or inaction that would likely lead to
 
 5 death.  The power remains in effect notwithstanding the
 
 6 principal's later incapacity and may include individual
 
 7 instructions.  Unless related to the principal by blood,
 
 8 marriage, or adoption, an agent may not be an owner, operator, or
 
 9 employee of the health-care institution at which the principal is
 
10 receiving care.  The power shall be in writing, contain the date
 
11 of its execution, be signed by the principal, and be witnessed by
 
12 one of the following methods:
 
13      (1)  Signed by at least two individuals, each of whom
 
14           witnessed either the signing of the instrument by the
 
15           principal or the principal's acknowledgement of the
 
16           signature of the instrument; or
 
17      (2)  Acknowledged before a notary public at any place within
 
18           this State."
 
19      SECTION 3.  Section 327E-5, Hawaii Revised Statutes, is
 
20 amended to read as follows:
 
21      "[[]§327E-5[]]  Health-care decisions; surrogates.(a)  A
 
22 patient may designate or disqualify any individual to act as a
 
23 surrogate by personally informing the supervising health-care
 

 
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 1 provider.  In the absence of such a designation, or if the
 
 2 designee is not reasonably available, a surrogate may be
 
 3 appointed to make a health-care decision for the patient.
 
 4      (b)  A surrogate may make a health-care decision for a
 
 5 patient who is an adult or emancipated minor if the patient has
 
 6 been determined by the primary physician to lack capacity and no
 
 7 agent or guardian has been appointed or the agent or guardian is
 
 8 not reasonably available.  Upon a determination that a patient
 
 9 lacks decisional capacity to provide informed consent to or
 
10 refusal of medical treatment, the primary physician or the
 
11 [physican's] physician's designee shall make reasonable efforts
 
12 to notify the patient of the patient's lack of capacity.  The
 
13 primary physician, or the physician's designee, shall make
 
14 reasonable efforts to locate as many interested persons as
 
15 practicable, and the primary physician may rely on such
 
16 individuals to notify other family members or interested persons.
 
17      (c)  Upon locating interested persons, the primary
 
18 physician, or the physician's designee, shall inform such persons
 
19 of the patient's lack of decisional capacity and that a surrogate
 
20 decision-maker should be selected for the patient.
 
21      (d)  Interested persons shall make reasonable efforts to
 
22 reach a consensus as to who among them shall make health-care
 
23 decisions on behalf of the patient.  The person selected to act
 

 
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 1 as the patient's surrogate should be the person who has a close
 
 2 relationship with the patient and who is the most likely to be
 
 3 currently informed of the patient's wishes regarding health-care
 
 4 decisions.  If any of the interested persons disagrees with the
 
 5 selection or the decision of the surrogate, or, if after
 
 6 reasonable efforts the interested persons are unable to reach a
 
 7 consensus as to who should act as the surrogate decision-maker,
 
 8 then any of the interested persons may seek guardianship of the
 
 9 patient by initiating guardianship proceedings pursuant to
 
10 chapter 551.  Only interested persons involved in the discussions
 
11 to choose a surrogate may initiate such proceedings with regard
 
12 to the patient.
 
13      (e)  If any interested person, the guardian, or primary
 
14 physician believes the patient has regained decisional capacity,
 
15 the primary physician shall reexamine the patient and determine
 
16 whether or not the patient has regained decisional capacity and
 
17 shall enter a decision and the basis for such decision into the
 
18 patient's medical record and shall notify the patient, the
 
19 surrogate decision-maker, and the person who initiated the
 
20 redetermination of decisional capacity.
 
21      (f)  A surrogate who has been designated by the patient and
 
22 a surrogate who has not been designated by the patient may make
 
23 health-care decisions for the patient that the patient could make
 

 
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 1 on the patient's own behalf[.]; provided, however, that no
 
 2 surrogate shall have the power to consent to or order physician-
 
 3 assisted death, withholding or withdrawal of natural or
 
 4 artificial nutrition and hydration, withholding or withdrawal of
 
 5 medications, or any action or inaction that would likely lead to
 
 6 death.
 
 7      (g)  [A surrogate who has not been designated by the patient
 
 8 may make all health-care decisions for the patient that the
 
 9 patient could make on the patient's own behalf, except that
 
10 artificial nutrition and hydration may be withheld or withdrawn
 
11 for a patient upon a decision of the surrogate only when the
 
12 primary physician and a second independent physician certify in
 
13 the patient's medical records that the provision or continuation
 
14 of artificial nutrition or hydration is merely prolonging the act
 
15 of dying and the patient is highly unlikely to have any
 
16 neurological response in the future.]
 
17      The surrogate who has not been designated by the patient
 
18 shall make health-care decisions for the patient based on the
 
19 wishes of the patient, or, if the wishes of the patient are
 
20 unknown or unclear, on the patient's best interest.
 
21      [The decision of a surrogate who has not been designated by
 
22 the patient regarding whether life-sustaining procedures should
 
23 be provided, withheld, or withdrawn shall not be based, in whole
 

 
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 1 or in part, on either a patient's preexisting, long-term mental
 
 2 or physical disability, or a patient's economic status.]  A
 
 3 surrogate who has not been designated by the patient shall inform
 
 4 the patient, to the extent possible, of the proposed procedure
 
 5 and the fact that someone else is authorized to make a decision
 
 6 regarding that procedure.
 
 7      (h)  A health-care decision made by a surrogate for a
 
 8 patient is effective without judicial approval.
 
 9      (i)  A supervising health-care provider shall require a
 
10 surrogate to provide a written declaration under the penalty of
 
11 false swearing stating facts and circumstances reasonably
 
12 sufficient to establish the claimed authority. 
 
13      (j)  No:
 
14      (1)  Primary physician;
 
15      (2)  Supervising health-care provider;
 
16      (3)  Other health-care provider involved in the care of the
 
17           patient;
 
18      (4)  Owner, operator, employee, or contractor of a health-
 
19           care institution in which the patient is receiving care
 
20           or at which the patient resides or is located;
 
21 shall be a surrogate."
 
22      SECTION 4.  Statutory material to be repealed is bracketed.
 
23 New statutory material is underscored.
 

 
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 1      SECTION 5.  This Act shall take effect upon its approval.
 
 2 
 
 3                              INTRODUCED BY:______________________