STAND. COM. REP. NO. 838

                                   Honolulu, Hawaii
                                                     , 1999

                                   RE:  S.B. No. 1022
                                        S.D. 2




Honorable Norman Mizuguchi
President of the Senate
Twentieth State Legislature
Regular Session of 1999
State of Hawaii

Sir:

     Your Committee on Judiciary, to which was referred S.B. No.
1022, S.D. 1, entitled: 

     "A BILL FOR AN ACT RELATING TO HEALTH-CARE DECISIONS,"

begs leave to report as follows:

     The purpose of this measure is to enact a Uniform Health
Care Decisions Act.

     Your Committee finds that since the Supreme Court's decision
in Cruzan v. Commissioner, Missouri Department of Health, 497
U.S. 261 (1990), significant changes have occurred in state
legislation on health care decision making.  Nearly all states
have statutes authorizing the use of powers of attorney for
health care.  In addition, a majority of states have statutes
allowing family members, and in some cases close friends, to make
health-care decisions for adult individuals who lack capacity.
However, your Committee recognizes that there is a greater need
for uniformity among advance directives for health care and
believes that this Uniform Health Care Decisions Act will
simplify and facilitate the making of advance health-care
directives.

     Testimony in support of this measure was submitted by the
Executive Office on Aging, the Governor's Surrogate Decision
Making Committee, the Policy Advisory Board for Elder Affairs,
Hawaii Medical Association, Healthcare Association of Hawaii,
Hospice Hawaii, Hawaii Right to Life, Hawaii Nurses Association,
an attorney specializing in elder law, and a law school professor

 
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who teaches elder law and health-related law.  The Judiciary
submitted comments on this measure.

     Upon further consideration, your Committee has amended this
measure by:

     (1)  Changing all references of "individual" to "patient";

     (2)  Changing all references of "individual instruction" to
          "instruction" and amending the definition to mean any
          type of written or oral direction concerning health-
          care treatment;

     (3)  Adding the definition of "patient" to mean an adult or
          emancipated minor;

     (4)  Changing all references of "principal" to "patient";

     (5)  Deleting the provisions setting forth the instructions
          for witness declarations;

     (6)  Deleting the provisions setting forth the instructions
          for a notary public;

     (7)  Adding reciprocal beneficiaries to the class of persons
          that may serve as an alternate designee to a surrogate;

     (8)  Changing the reference of "residential long-term health
          care institution" to "health care institution";

     (9)  Changing all references of "ward" to "patient";

     (10) Changing the majority of references of "person" to
          "agent, guardian, or surrogate" where applicable;

     (11) Adding the word "guardian" to section 10 of the bill;

     (12) Deleting the repeal of Act 332, Session Laws of Hawaii
          1997 since it automatically will repeal on June 30,
          1999 and the effective date of this Act is July 1,
          1999; and

     (13) Making technical, non-substantive changes for the
          purposes of clarity and style.

     Although your Committee supports the intent of the measure,
your Committee still has many concerns that need to be addressed
as this bill winds its way through the legislative process.  The

 
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following is not meant to be an exhaustive list of issues and
should be considered as a starting point for further discussions.

     (1)  In section 3 (a) and (b), clarification is needed to
          address the question of whether an "instruction",
          "power of attorney" and "patient instruction" has the
          same meaning;

     (2)  In section 3 (e), clarification is needed to address
          the question of whether the effectiveness of a power of
          attorney permanently ceases upon the patient's
          recovery;

     (3)  In section 4 and 6, clarification is needed to address
          the question of whether "personally informing" actually
          means an oral communication;

     (4)  In section 6, clarification is needed to address the
          issue of whether there is a compelling need for a
          surrogate decision maker and a scheme for multiple
          alternates;

     (5)  In section 6, clarification is needed to address the
          issue of whether the approach in subsection (e) is the
          best way to handle a disagreement among the surrogate
          alternates;

     (6)  In section 6, clarification is needed to address the
          question of how is a surrogate required to communicate
          the surrogate's assumption of authority -- in writing,
          orally, by telephone, by fax, etc.;

     (7)  In section 7(a), clarification is needed to address the
          question of when would a legal guardian be appointed by
          the court.  It appears that the courts will not appoint
          a guardian unless the patient (ward) was previously
          determined to be incapacitated.  Consideration should
          be given to the Judiciary's comments with regards to
          this provision;

     (8)  In section 8, clarification is needed to address the
          issue of how to define "reasons of conscience";

     (9)  In sections 9 and 10, a closer examination of the
          immunity and liability provisions is required; and

     (10) In section 11, clarification is needed to address the
          question of who is an "aggrieved individual", who is
          the "person", and who is the "individual".

 
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     As affirmed by the record of votes of the members of your
Committee on Judiciary that is attached to this report, your
Committee is in accord with the intent and purpose of S.B. No.
1022, S.D. 1, as amended herein, and recommends that it pass
Third Reading in the form attached hereto as S.B. No. 1022, S.D.
2.

                                   Respectfully submitted on
                                   behalf of the members of the
                                   Committee on Judiciary,



                                   ______________________________
                                   AVERY B. CHUMBLEY, Co-Chair



                                   ______________________________
                                   MATTHEW M. MATSUNAGA, Co-Chair

 
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