SB1129.DOC

SECTION 1. The legislature finds that some states have enacted laws that allow their mentally competent adult residents who have a terminal illness with a confirmed prognosis of six or fewer months to live to voluntarily request and receive a prescription medication so that they can die in a peaceful, humane manner. These laws, labeled "death with dignity laws," are based on the concept that the terminally ill person should have the ability to make reasoned end-of-life decisions and determine how much pain and suffering to endure.

The legislature also finds that Oregon's death with dignity act has been in effect since 1997. Similar laws are also in effect in California, Colorado, Vermont, and Washington. This act is modeled on the Oregon statute and includes safeguards to protect patients from misuse. These safeguards include confirmation by two physicians of the patient’s diagnosis, prognosis, mental competence, and voluntariness of the request; multiple requests by the patient: an oral request followed by a signed written request that is witnessed by two people, one of whom must be unrelated to the patient, and a subsequent oral restatement of the request; and two waiting periods between the requests and the writing of the prescription. At all times the patient retains the right to rescind the request and is under no obligation to fill the prescription or ingest the medication.

The legislature concludes that terminally ill residents of the State have a right to determine their own medical treatment at the end of their lives.

The purpose of this Act is to enact a death with dignity act.

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

"Chapter

death with dignity act

§ -1 Definitions. The following terms shall mean as follows:

"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.

"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 the law of this State 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 qualified 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 medical diagnosis;

(2) The 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 by the Hawaii medical board.

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

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

§ -2 Written request for medication; initiated. (a) An adult who is capable, is a resident of the State, 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 chapter solely because of age or disability.

§ -3 Form of the written request. (a) A valid request for medication under this chapter shall be in substantially the form described in section -22, 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 and having qualifications specified by the department of human services by rule.

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

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

(2) Request that the patient demonstrate residency;

(3) To ensure that the patient is making an informed decision, inform the patient of:

(A) The medical diagnosis;

(B) The 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 time of the patient's second oral request made pursuant to section -9;

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

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

(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; and

(12) Either:

(A) Dispense medications directly, including ancillary medications intended to facilitate the desired effect to minimize the patient's discomfort; provided that the attending physician is registered as a dispensing physician with the Hawaii medical board, has a current Drug Enforcement Administration certificate, and complies with any applicable administrative rule; or

(B) With the patient's written consent:

(i) Contact a pharmacist of the patient's choice and inform the pharmacist of the prescription; and

(ii) Transmit the written prescription personally, by mail, or electronically to the pharmacist, who will dispense the medications to either the patient, the attending physician, or an expressly identified agent of the patient.

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

§ -5 Consulting physician confirmation. Before a patient is qualified under this chapter, 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 person shall receive a prescription for medication to end the person's life in a humane and dignified manner unless the person has made an informed decision. Immediately prior to writing a prescription for medication under this chapter, 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 patient's request denied for that reason.

§ -9 Written and oral requests. To receive a prescription for medication to end one's life in a humane and dignified manner, a qualified patient shall have made an oral request and a written request, and reiterate the oral request to the qualified patient's attending physician not 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 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 having offered the qualified patient an opportunity to rescind the request made pursuant to section -9.

§ -11 Waiting periods. Not less than fifteen days shall elapse between the patient's initial oral request and the writing of a prescription under this chapter. Not less than forty-eight hours shall elapse between the patient's written request and the writing of a prescription under this chapter.

§ -12 Medical record; documentation requirements. The following shall be documented or filed in the 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 made 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 made by residents of this State under this chapter shall be granted. Factors demonstrating state residency include but are not limited to:

(1) Possession of a Hawaii driver license;

(2) Registration to vote in Hawaii;

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

(4) Filing of a Hawaii 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 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 subsection (c).

§ -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. Neither shall a qualified patient's act of ingesting medication to end the qualified patient's life in a humane and dignified manner have an effect upon a life, health, or accident insurance or annuity policy.

§ -17 Construction of chapter. Nothing in this chapter shall 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, under the law.

§ -18 Immunities; basis for prohibiting health care provider from participation; notification; permissible sanctions. (a) Except as provided in section -19:

(1) No person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance with this chapter, including being present when a qualified patient takes the prescribed medication to end the qualified patient's life in a humane and dignified manner;

(2) 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;

(3) 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; and

(4) 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 qualified patient's life in a humane and dignified manner. If a health care provider is unable or unwilling to carry out a patient's request under this chapter, and the patient transfers the patient's 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.

(b) Notwithstanding any other provision of law, a health care provider may prohibit another health care provider from participating in actions covered by 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 participation in actions covered by this chapter. Nothing in this subsection shall prevent a health care provider from providing health care services to a patient that do not constitute participation in actions covered by this chapter.

(c) Notwithstanding subsection (a)(1) to (a)(4), 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 actions covered by this chapter that it prohibits the participation:

(1) Loss of privileges, loss of membership, or other sanction provided pursuant to the medical staff bylaws, 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 actions covered by 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 lease or other property contract or other nonmonetary remedies provided by lease contract, not including loss or restriction of medical staff privileges or exclusion from a provider panel, if the sanctioned provider participates in actions covered by 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 contract or other nonmonetary remedies provided by contract if the sanctioned provider participates in actions covered by 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 actions covered by 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.

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

(e) For the 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 actions covered by this chapter of the sanctioning health care provider's policy regarding participation in actions covered by this chapter.

"Participate in actions covered by this chapter" means to perform the duties of an attending physician, the consulting physician function pursuant to section -5, or the counseling referral function pursuant to section -6. The term 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.

(f) Action taken pursuant to sections -4 to -6 shall not be the sole basis for disciplinary action under section 453-8.

(g) This chapter shall not be construed to allow a lower standard of care for patients in the community where the patient is treated or a similar community.

§ -19 Prohibited acts; penalties. (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 A 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 the request, shall be guilty of a class A felony.

(c) It shall be a class A 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 that hastens the death of the principal.

(d) Except as provided in subsection (c), 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.

(e) Nothing in this section shall limit any further liability for civil damages resulting from other negligent conduct or intentional misconduct by any person.

(f) The penalties in this chapter are cumulative and do not preclude criminal penalties applicable under other law for conduct which is inconsistent with this chapter.

§ -20 Claims by governmental entity for costs incurred. Any governmental entity that incurs costs resulting from a person terminating the person's life pursuant to this chapter in a public place shall have a claim against the estate of the person to recover costs and reasonable attorney fees related to enforcing the claim.

§ -21 Severability. Any section of this chapter that is held invalid as to any person or circumstance shall not affect the application of any other section of this chapter that can be given full effect without the invalid section or application.

§ -22 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 that 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;

(c) Appears to be of sound mind and not under duress or to have been induced by fraud, or subjected to undue influence when signing the request; and

(d) Is not a patient for whom either of us is the 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 long-term care facility, one of the witnesses shall be an individual designated by the facility.""

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	1129
TWENTY-NINTH LEGISLATURE, 2017
STATE OF HAWAII