SB800

SECTION 1. The United States Supreme Court in Gonzales, Attorney General v. Oregon, No. 04-623 (January 17, 2006), in effect let stand the Oregon death with dignity act (section 127.800 et seq., Oregon Revised Statutes) as not being a violation of the federal Controlled Substances Act (CSA). The court stated in pertinent part:

[T]he prescription requirement [referring to the federal Act] is better understood as a provision that ensures patients use controlled substances under the supervision of a doctor so as to prevent addiction and recreational abuse. As a corollary, the provision also bars doctors from peddling to patients who crave the drugs for those prohibited uses. . . . To read prescriptions for assisted suicide as constituting "drug abuse" under the CSA is discordant with the phrase's consistent use throughout the statute, not to mention its ordinary meaning. . . .

[W]e conclude the CSA's prescription requirement does not authorize the Attorney General to bar dispensing controlled substances for assisted suicide in the face of a state medical regime permitting such conduct. . . . The text and structure of the CSA shows that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it.

The legislature finds that doctors in Hawaii have been restrained from prescribing controlled substances to terminally ill patients for fear of violating the federal and state controlled substances Act. However, the Gonzales v. Oregon case has removed this impediment.

Hawaii's uniform health-care decisions Act, chapter 327E, Hawaii Revised Statutes, provides for an agent of an individual to make health-care decisions for the individual under certain circumstances. However, chapter 327E does not allow a terminally ill patient to authorize the patient's physician to prescribe medications to end life.

The purpose of this Act is to enact the Hawaii death with dignity act to allow the attending physician of the terminally ill patient, with appropriate safeguards, to prescribe medication to end the patient's life.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

HAWAII DEATH WITH DIGNITY ACT

§ ‑1 Definitions. As used in this chapter:

"Adult" means an individual who is eighteen years of age or older.

"Attending physician" means the physician who has primary responsibility for the care of the patient and treatment of the patient's terminal disease.

"Capable" means that in the opinion of a court or in the opinion of the patient's attending physician or consulting physician, psychiatrist, or psychologist, a patient has the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the patient's manner of communicating if those persons are available.

"Consulting physician" means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient's disease.

"Counseling" means one or more consultations as necessary between a state licensed psychiatrist or psychologist and a patient for the purpose of determining that the patient is capable and not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.

"Department" means the department of health.

"Health care provider" means a person licensed, certified, or otherwise authorized or permitted by state law to administer health care or dispense medication in the ordinary course of business or practice of a profession, and includes a health care facility.

"Informed decision" means a decision by a qualified patient, to request and obtain a prescription to end the patient's life in a humane and dignified manner, that is based on an appreciation of the relevant facts and after being fully informed by the attending physician of:

(1) The patient's medical diagnosis;

(2) The patient's prognosis;

(3) The potential risks associated with taking the medication to be prescribed;

(4) The probable result of taking the medication to be prescribed; and

(5) The feasible alternatives, including, but not limited to, comfort care, hospice care, and pain control.

"Medically confirmed" means the medical opinion of the attending physician has been confirmed by a consulting physician who has examined the patient and the patient's relevant medical records.

"Patient" means a person who is under the care of a physician.

"Physician" means a doctor of medicine or osteopathy licensed to practice medicine in this State.

"Qualified patient" means a capable adult who is a state resident and has satisfied the requirements of this chapter in order to obtain a prescription for medication to end the adult's life in a humane and dignified manner.

"Terminal disease" means an incurable and irreversible disease that has been medically confirmed and, within reasonable medical judgment, will produce death within six months.

§ ‑2 Who may initiate a written request for medication. (a) An adult who is capable, is a state resident, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed the adult's wish to die, may make a written request for medication for the purpose of ending the adult's life in a humane and dignified manner in accordance with this chapter.

(b) No person shall qualify under this section solely because of age or disability.

§ ‑3 Form of the written request. (a) A valid request for medication shall be in substantially the form described in section ‑20, signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is capable, acting voluntarily, and is not being coerced to sign the request.

(b) One of the witnesses shall be a person who is not:

(1) A relative of the patient by blood, marriage, or adoption;

(2) A person who at the time the request is signed would be entitled to any portion of the estate of the qualified patient upon death under any will or by operation of law; or

(3) An owner, operator, or employee of a health care facility where the qualified patient is receiving medical treatment or is a resident.

(d) If the patient is a patient in a long-term care facility at the time the written request is made, one of the witnesses shall be an individual designated by the facility who has the qualifications required by rules adopted by the department.

§ ‑4 Attending physician responsibilities. (a) The attending physician shall:

(1) Make the initial determination whether a patient has a terminal disease, is capable, and has made the request voluntarily;

(2) Request that the patient demonstrate state residency;

(3) Ensure that the patient is making an informed decision, by informing the patient of:

(A) The patient's medical diagnosis;

(B) The patient's prognosis;

(D) The probable result of taking the medication to be prescribed; and

(E) The feasible alternatives, including, but not limited to, comfort care, hospice care, and pain control;

(4) Refer the patient to a consulting physician for medical confirmation of the diagnosis, and for a determination that the patient is capable and acting voluntarily;

(5) Refer the patient for counseling if appropriate;

(6) Recommend that the patient notify next of kin;

(7) Counsel the patient about the importance of having another person present when the patient takes the medication prescribed pursuant to this chapter and of not taking the medication in a public place;

(8) Inform the patient that the patient has an opportunity to rescind the request at any time and in any manner, and offer the patient an opportunity to rescind at the end of the fifteen day waiting period pursuant to section ‑9;

(9) Verify, immediately prior to writing the prescription for medication, that the patient is making an informed decision;

(10) Fulfill the medical record documentation requirements of section ‑12; and

(11) Ensure that all appropriate steps are carried out in accordance with this chapter prior to writing a prescription for medication to enable a qualified patient to end the qualified patient's life in a humane and dignified manner.

(b) For purposes of this section, notwithstanding any law to the contrary, the attending physician shall dispense medications directly, including ancillary medications intended to facilitate the desired effect to minimize the patient's discomfort; provided the attending physician is authorized to dispense controlled substances under section 329-38, has a current Drug Enforcement Administration certificate, and complies with any applicable administrative rule.

(1) Contact a pharmacist and inform the pharmacist of the prescription; and

(2) Deliver the written prescription personally or by mail to the pharmacist, who shall dispense the medications to the patient, the attending physician, or an expressly identified agent of the patient.

(d) Notwithstanding any other provision of law, the attending physician may sign the patient's death certificate.

§ ‑5 Consulting physician confirmation. Before a patient becomes a qualified patient, a consulting physician shall examine the patient and the patient's relevant medical records and confirm, in writing, the attending physician's diagnosis that the patient is suffering from a terminal disease, and verify that the patient is capable, is acting voluntarily, and has made an informed decision.

§ ‑6 Counseling referral. If, in the opinion of the attending physician or the consulting physician, a patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, either physician shall refer the patient for counseling. No medication to end a patient's life in a humane and dignified manner shall be prescribed until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.

§ ‑7 Informed decision. No qualified patient shall receive a prescription for medication to end the patient's life in a humane and dignified manner unless the patient has made an informed decision. Immediately prior to writing a prescription for medication, the attending physician shall verify that the patient is making an informed decision.

§ ‑8 Family notification. The attending physician shall recommend that the patient notify the next of kin of the patient's request for medication pursuant to this chapter. A patient who declines or is unable to notify next of kin shall not have the request denied for that reason.

§ ‑9 Written and oral requests. In order to receive a prescription for medication to end a qualified patient's life in a humane and dignified manner, the qualified patient shall have made an oral request and a written request, and reiterate the oral request to the attending physician no less than fifteen days after making the initial oral request. At the time the qualified patient makes the second oral request, the attending physician shall offer the patient an opportunity to rescind the request.

§ ‑10 Right to rescind request. A patient may rescind the written request at any time and in any manner without regard to the patient's mental state. No prescription for medication under this chapter may be written without the attending physician offering the qualified patient an opportunity to rescind the request.

§ ‑11 Waiting periods. No less than fifteen days shall elapse between the patient's initial oral request and the writing of a prescription under this chapter. No less than forty-eight hours shall elapse between the patient's written request and the writing of a prescription.

§ ‑12 Medical record documentation requirements. The following shall be documented or filed in the qualified patient's medical record:

(1) All oral requests by a patient for medication to end the patient's life in a humane and dignified manner;

(2) All written requests by a patient for medication to end the patient's life in a humane and dignified manner;

(3) The attending physician's diagnosis and prognosis, determination that the patient is capable, acting voluntarily, and has made an informed decision;

(4) The consulting physician's diagnosis and prognosis, and verification that the patient is capable, acting voluntarily, and has made an informed decision;

(5) A report of the outcome and determinations made during counseling, if performed;

(6) The attending physician's offer to the patient to rescind the patient's request at the time of the patient's second oral request pursuant to section ‑9; and

(7) A note by the attending physician indicating that all requirements under this chapter have been met and indicating the steps taken to carry out the request, including a notation of the medication prescribed.

§ ‑13 Residency requirement. Only requests under this chapter made by state residents shall be granted. Factors demonstrating state residency include, but are not limited to:

(1) Possession of a state driver license;

(2) Registration to vote in the State;

(3) Evidence that the person owns or leases property in the State; or

(4) Filing of a state income tax return for the most recent tax year.

§ ‑14 Reporting requirements. (a) The department shall annually review a sample of records maintained pursuant to this chapter.

(b) The department shall require any health care provider upon dispensing medication pursuant to this chapter to file a copy of the dispensing record with the department.

(c) The department shall adopt rules pursuant to chapter 91 to facilitate the collection of information regarding compliance with this chapter. Except as otherwise required by law, the information collected shall not be a public record and may not be made available for inspection by the public.

(d) The department shall generate and make available to the public an annual statistical report of information collected under this section.

§ ‑15 Effect on construction of wills, contracts, and statutes. (a) No provision in a contract, will, or other agreement, whether written or oral, to the extent the provision would affect whether a person may make or rescind a request for medication to end the person's life in a humane and dignified manner, shall be valid.

(b) No obligation owing under any currently existing contract shall be conditioned or affected by the making or rescinding of a request, by a person, for medication to end the person's life in a humane and dignified manner.

§ ‑16 Insurance or annuity policies. The sale, procurement, or issuance of any life, health, or accident insurance or annuity policy or the rate charged for any policy shall not be conditioned upon or affected by the making or rescinding of a request, by a person, for medication to end the person's life in a humane and dignified manner pursuant to this chapter. Neither shall a qualified patient's act of ingesting medication to end the patient's life in a humane and dignified manner have an effect upon a life, health, or accident insurance or annuity policy.

§ ‑17 Construction. This chapter shall not be construed to authorize a physician or any other person to end a patient's life by lethal injection, mercy killing, or active euthanasia. Actions taken in accordance with this chapter shall not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide.

§ ‑18 Immunities; basis for prohibiting health care provider from participation; notification; permissible sanctions. (a) No person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance with this chapter, including by being present when a qualified patient takes the prescribed medication to end the patient's life in a humane and dignified manner.

(b) No professional organization or association, or health care provider may subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership, or other penalty for participating or refusing to participate in good faith compliance with this chapter.

(c) No request by a patient for or provision by an attending physician of medication in good faith compliance with this chapter shall constitute neglect for any purpose of law or provide the sole basis for the appointment of a guardian or conservator.

(d) No health care provider shall be under any duty, whether by contract, by statute, or by any other legal requirement, to participate in the provision to a qualified patient of medication to end the patient's life in a humane and dignified manner. If a health care provider is unable or unwilling to carry out a patient's written request under this chapter, and the patient transfers care to a new health care provider, the prior health care provider shall transfer, upon request, a copy of the patient's relevant medical records to the new health care provider.

(e) Notwithstanding any other provision of law, a health care provider may prohibit another health care provider from participating in the procedures under this chapter on the premises of the prohibiting provider, if the prohibiting provider has notified the health care provider of the prohibiting provider's policy regarding participating in the procedures under this chapter. Nothing in this paragraph prevents a health care provider from providing health care services to a patient that do not constitute participation in the procedures under this chapter.

(f) Notwithstanding subsections (a) to (d), a health care provider may subject another health care provider to the following sanctions if the sanctioning health care provider has notified the sanctioned provider prior to participation in the procedures under this chapter that this chapter prohibits such participation:

(1) Loss of privileges, loss of membership, or other sanction provided pursuant to the medical staff by‑laws, policies, and procedures of the sanctioning health care provider if the sanctioned provider is a member of the sanctioning provider's medical staff and participates in procedures under this chapter while on the health care facility premises of the sanctioning health care provider, but not including the private medical office of a physician or other provider;

(2) Termination of a lease or other property contract or other nonmonetary remedies provided by the lease or contract, not including loss or restriction of medical staff privileges or exclusion from a provider panel, if the sanctioned provider participates in procedures under this chapter while on the premises of the sanctioning health care provider or on property that is owned by or under the direct control of the sanctioning health care provider; or

(3) Termination of a contract or other non-monetary remedies provided by contract if the sanctioned provider participates in procedures under this chapter while acting in the course and scope of the sanctioned provider's capacity as an employee or independent contractor of the sanctioning health care provider. Nothing in this paragraph shall be construed to prevent:

(A) A health care provider from participating in the procedures under this chapter while acting outside the course and scope of the provider's capacity as an employee or independent contractor; or

(B) A patient from contracting with the patient's attending physician and consulting physician to act outside the course and scope of the provider's capacity as an employee or independent contractor of the sanctioning health care provider.

(g) A health care provider that imposes sanctions pursuant to subsection (f) shall follow all due process and other procedures that the sanctioning health care provider may have that are related to the imposition of sanctions on another health care provider.

(h) Action taken pursuant to this section shall not be the sole basis for a report of unprofessional or dishonorable conduct for professional disciplinary purposes.

(i) No provision of this chapter shall be construed to allow a lower standard of care for patients in the community where the patient is treated or a similar community.

(j) For purposes of this section:

"Notify" means a separate statement in writing to the health care provider specifically informing the health care provider prior to the provider's participation in the procedures under this chapter of the sanctioning health care provider's policy about participation in procedures under this chapter.

"Participation in the procedures under this chapter" means to perform the duties of an attending physician pursuant to section ‑4, the consulting physician function pursuant to section ‑5, or the counseling function pursuant to section ‑6. "Participation in the procedures under this chapter" does not include:

(1) Making an initial determination that a patient has a terminal disease and informing the patient of the medical prognosis;

(2) Providing information about this chapter to a patient upon the request of the patient;

(3) Providing a patient, upon the request of the patient, with a referral to another physician; or

(4) A patient contracting with the patient's attending physician and consulting physician to act outside of the course and scope of the provider's capacity as an employee or independent contractor of the sanctioning health care provider.

§ ‑19 Liabilities. (a) A person who without authorization of the patient wilfully alters or forges a request for medication or conceals or destroys a rescission of that request with the intent or effect of causing the patient's death shall be guilty of a class felony.

(b) A person who coerces or exerts undue influence on a patient to request medication for the purpose of ending the patient's life, or to destroy a rescission of such a request, shall be guilty of a class felony.

(c) Nothing in this chapter limits further liability for civil damages resulting from other negligent conduct or intentional misconduct by any person.

(d) The penalties in this chapter do not preclude criminal penalties under other law for conduct which is not authorized by this chapter.

§ ‑20 Form of the request. A request for a medication as authorized by this chapter shall be in substantially the following form:

"REQUEST FOR MEDICATION

TO END MY LIFE IN A HUMANE

AND DIGNIFIED MANNER

I, ______________________, am an adult of sound mind. I am suffering from _________, which my attending physician has determined is a terminal disease and which has been medically confirmed by a consulting physician.

I have been fully informed of my diagnosis, prognosis, the nature of medication to be prescribed and potential associated risks, the expected result, and the feasible alternatives, including comfort care, hospice care, and pain control.

I request that my attending physician prescribe medication that will end my life in a humane and dignified manner.

INITIAL ONE:

_____ I have informed my family of my decision and taken their opinions into consideration.

_____ I have decided not to inform my family of my decision.

_____ I have no family to inform of my decision.

I understand that I have the right to rescind this request at any time.

I understand the full import of this request and I expect to die when I take the medication to be prescribed. I further understand that although most deaths occur within three hours, my death may take longer and my physician has counseled me about this possibility.

I make this request voluntarily and without reservation, and I accept full moral responsibility for my actions.

Signed: ______________

Dated: _______________

DECLARATION OF WITNESSES

We declare that the person signing this request:

(a) Is personally known to us or has provided proof of identity;

(b) Signed this request in our presence;

(d) Is not a patient for whom either of us is attending physician.

______________Witness 1/Date

______________Witness 2/Date"

NOTE: One witness shall not be a relative (by blood, marriage or adoption) of the person signing this request, shall not be entitled to any portion of the person's estate upon death and shall not own, operate or be employed at a health care facility where the person is a patient or resident. If the patient is an inpatient at a health care facility, one of the witnesses shall be an individual designated by the facility.

§ ‑21 Penalties. (a) It shall be a class felony for a person without authorization of the principal to wilfully alter, forge, conceal, or destroy an instrument, the reinstatement or revocation of an instrument or any other evidence or document reflecting the principal's desires and interests, with the intent and effect of causing a withholding or withdrawal of life-sustaining procedures or of artificially administered nutrition and hydration which hastens the death of the principal.

(b) Except as provided in subsection (a) of this section, it shall be a misdemeanor for a person without authorization of the principal to wilfully alter, forge, conceal, or destroy an instrument, the reinstatement or revocation of an instrument, or any other evidence or document reflecting the principal's desires and interests with the intent or effect of affecting a health care decision."

SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	800
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII