Hawaii-2011-SB803-Introduced

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

death with dignity

Part I. General provisions

§ ‑1 Definitions. As used in this chapter, unless the context clearly requires otherwise:

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

"Alternate physician" means a physician who assumes the responsibilities relinquished by an attending physician who declines or is unable to fulfill the responsibilities of an attending physician as required under section ‑31(a).

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

"Capable" means that, in the opinion of:

(1) A court; or

(2) 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 causing impaired judgment.

"Department" means the department of health.

"Health care facility" means:

(1) A hospital that has an organized medical staff and permanent facilities that include inpatient beds, and that has medical services, including physician services and continuous nursing services under the supervision of registered nurses, to provide diagnosis and medical or surgical treatment primarily for acutely ill patients and accident victims, or to provide treatment for the mentally ill, or to provide treatment in special inpatient care facilities. For purposes of this definition, a "special inpatient care facility" is a facility having permanent inpatient beds and other facilities designed and used for special health care purposes, including: rehabilitation centers, college infirmaries, chiropractic facilities, facilities for the treatment of alcoholism or drug abuse, or inpatient care facilities, and any other facility falling within a classification established by the department, after determination of the need for that classification and the level and kind of health care appropriate for that classification; or

(2) A long-term care facility that has permanent facilities that include inpatient beds, providing medical services, including nursing services but excluding surgical procedures except as may be permitted by the rules of the department, to provide treatment for two or more unrelated patients. The term "long-term care facility" includes:

(A) A skilled nursing facility, whether an institution or a distinct part of an institution, that is primarily engaged in providing to inpatients skilled nursing care and related services for patients who require medical or nursing care, or rehabilitation services for the rehabilitation of injured, disabled, or sick persons; or

(B) An intermediate care facility that provides, on a regular basis, health-related care and services to individuals who do not require the degree of care and treatment that a hospital or skilled nursing facility is designed to provide, but who, because of their mental or physical condition, require care and services above the level of room and board that can be made available to them only through institutional facilities.

The term shall not be construed to include home health agencies, residential facilities, hospice programs, and private homes.

"Health care provider" means a person licensed, certified, or otherwise authorized or permitted by the laws 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 that is:

(1) Made by a qualified patient to request and obtain a prescription to end life in a humane and dignified manner;

(2) Based upon an appreciation of the relevant facts; and

(3) Made after being fully informed by the attending physician of:

(A) The qualified patient's medical diagnosis;

(B) The qualified patient's prognosis;

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

(E) The feasible alternatives, including 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 pursuant to chapter 453.

"Qualified patient" means a capable adult who is a resident of Hawaii and has satisfied the requirements of this chapter in order to obtain a prescription for medication to end 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, result in the patient's death within six months.

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

PART II. WRITTEN REQUEST FOR MEDICATION

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

(b) No person shall qualify as a qualified patient under this chapter solely because of age or disability.

§ ‑22 Form of the written request. (a) A valid request for medication under this chapter shall be in substantially the form described in section ‑61, signed and dated by the qualified patient and witnessed by at least two individuals who, in the presence of the qualified patient, attest that to the best of their knowledge and belief, the qualified 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 any of the following:

(1) A relative of the qualified 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.

(c) The qualified patient's attending physician or alternate physician at the time the request is signed shall not be a witness.

(d) If the qualified patient is in a long-term care facility at the time the written request is made, a third witness shall be required in addition to the two witnesses described in subsection (a). The third witness shall be an individual designated by the facility and shall have the qualifications specified by the department by rule.

PART III. SAFEGUARDS

§ ‑31 Attending physician responsibilities; alternate physician. (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 Hawaii residency pursuant to section ‑40;

(3) To ensure that the patient is making an informed decision, inform 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 comfort care, hospice care, and pain control;

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

(5) Refer the patient for counseling if appropriate pursuant to section ‑33;

(6) Recommend that the patient notify next of kin as provided in section -35;

(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 may rescind the request at any time and in any manner, and shall offer the patient an opportunity, pursuant to section ‑37, to rescind the request at the end of the fifteen‑day waiting period;

(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 ‑39;

(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 life in a humane and dignified manner; and

(12) (A) Dispense medications directly, including ancillary medications intended to facilitate the desired effect, to minimize the qualified patient's discomfort; provided 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 and inform the pharmacist of the prescription; and

(ii) Deliver the written prescription personally or by mail to the pharmacist, who shall dispense the medications either to the qualified 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 qualified patient's death certificate.

(c) If at any time an attending physician declines or is unable to fulfill any of the responsibilities detailed in subsection (a), particularly subsection (a)(12) regarding dispensing medication to a patient, the attending physician shall relinquish the responsibilities to an alternate physician who is willing and able to fulfill the responsibilities detailed in subsection (a). The alternate physician shall confirm with the attending physician or the consulting physician that the diagnosis has not changed and that the patient is capable, is acting voluntarily, has made an informed decision, and remains a qualified patient under this chapter. The alternate physician may not dispense medication to the qualified patient under subsection (a)(12) until at least fifteen days after the alternate physician's initial consultation with the patient.

§ ‑32 Consulting physician confirmation. Before a patient is deemed a qualified patient under this chapter, the 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 shall verify that the patient is capable, is acting voluntarily, and has made an informed decision. If necessary, the consulting physician shall also confirm with the alternate physician, pursuant to section ‑31(c), that the diagnosis has not changed and that the patient is capable, is acting voluntarily, has made an informed decision, and remains a qualified patient under this chapter.

§ ‑33 Counseling referral. If, in the opinion of the attending physician, the alternate physician, or the consulting physician, a patient may be suffering from a psychiatric or psychological disorder causing impaired judgment, any one of the physicians shall refer the patient for counseling. No medication to end 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 causing impaired judgment.

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

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

§ ‑36 Written and oral requests. To receive a prescription for medication to end life in a humane and dignified manner, a qualified patient shall make an oral request or a written request. If an oral request is made, the qualified patient shall reiterate the oral request to the attending or alternate 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 or alternate physician shall offer the qualified patient an opportunity to rescind the request.

§ ‑37 Right to rescind request. A qualified patient who has made a request may rescind the request at any time and in any manner regardless of whether the person who made the request under this part is capable, as defined in section ‑1. No prescription for medication under this chapter may be written without the attending or alternate physician offering the qualified patient an opportunity to rescind the request.

§ ‑38 Waiting periods. No less than fifteen days shall elapse between the qualified 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 under this chapter.

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

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

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

(3) The attending physician's diagnosis, prognosis, and determination that the patient is capable, acting voluntarily, and has made an informed decision and, if necessary, the alternate physician's confirmation that the diagnosis has not changed and that the patient is capable, is acting voluntarily, has made an informed decision, and remains a qualified patient under this chapter;

(4) The consulting physician's diagnosis, 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 or alternate physician's offer to the qualified patient the opportunity to rescind the qualified patient's request at the time of the qualified patient's second oral request pursuant to section ‑36;

(7) A note by the attending or alternate 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; and

(8) A completed form reporting the event to be completed by a monitor who is required to be present at the event pursuant to section ‑41.

§ ‑40 Residency requirement. Only requests made by Hawaii residents who have been domiciled or physically present in the State for a continuous period of at least six months prior to the time the initial oral request for medication to end life is made under this chapter shall be granted. Factors establishing Hawaii residency include:

(1) Possession of a Hawaii driver's license;

(2) Registration to vote in Hawaii;

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

(4) Filing of a Hawaii tax return for the most recent tax year; or

(5) Any other documentation that establishes legal residency in the State.

§ ‑41 Monitor required; form. (a) A qualified patient shall designate a competent adult to act as a monitor who shall be present at the time of actual administration of the medication to the qualified patient and shall witness the event. The monitor shall have the power to act on behalf of the qualified patient to:

(1) Stop the administration of the medication if it has not yet been carried out; or

(2) Enlist medical assistance to attempt to reverse the effect of the medication if the medication has already been administered,

if the monitor has reason to believe that the qualified patient has had a change of mind and is not able to effectively express or communicate the wish not to proceed taking the medication.

(b) The department of health shall develop a form for a monitor to complete upon witnessing and participating in the event described under this section.

§ ‑42 Department requirements. (a) The department shall annually review a sample of records maintained pursuant to this chapter and shall require any health care provider upon dispensing medication pursuant to this chapter to file a copy of the dispensing record with the department.

(b) 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 government record under chapter 92F and shall not be made available for inspection by the public.

(c) The department shall generate and make available to the public an annual statistical report of information collected under subsection (b).

(d) Upon the filing of a death certificate under section 338‑9 of any qualified patient under this chapter, the department shall designate the cause of death as the underlying terminal disease or diseases as diagnosed under section ‑31(a)(1).

§ ‑43 Effect on construction of wills, contracts, and other agreements. (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 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 who is a qualified patient, for medication to end life in a humane and dignified manner.

§ ‑44 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 in this State shall not be conditioned upon or affected by the making or rescinding of a request, by a person who is a qualified patient, for medication to end life in a humane and dignified manner. A qualified patient's act of being administered medication to end life in a humane and dignified manner shall not have an effect upon any life, health, or accident insurance or annuity policy issued in this State, nor be construed as a suicide for purposes of any life, health, or accident insurance or annuity policy issued in this State for purposes of section 431:10D-108(b)(5).

§ ‑45 Construction of chapter. Nothing in this chapter shall be construed to authorize a physician or any other person to end life by lethal injection, mercy killing, or active euthanasia. Actions taken in accordance with this chapter, for any purpose, shall not constitute suicide, assisted suicide, mercy killing, or homicide under the law.

PART IV. IMMUNITIES AND LIABILITIES

§ ‑51 Immunities; basis for prohibiting health care provider or monitor from participation; notification; permissible sanctions. (a) Except as provided in section ‑52:

(1) No person shall be subject to civil or criminal liability or professional disciplinary action for participating in actions taken in good faith compliance with this chapter. This includes being present when a qualified patient takes the prescribed medication to end 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 qualified patient for, or provision by an attending or alternate 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, statute, or any other legal requirement, to participate in the provision to a qualified patient of medication to end life in a humane and dignified manner. If a health care provider is unable or unwilling to carry out a qualified patient's request under this chapter, and the qualified patient transfers the qualified patient's care to a new health care provider, the prior health care provider shall transfer, upon request, a copy of the qualified patient's relevant medical records to the new health care provider.

(b) Except as provided in section -52:

(1) Notwithstanding any other provision of law, a health care provider may prohibit another health care provider from participating in activities 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 prohibition of participation in activities covered by this chapter. Nothing in this paragraph shall prevent a health care provider from providing health care services to a qualified patient that does not constitute participation in activities covered by this chapter;

(2) Notwithstanding subsection (a), a health care provider may subject another health care provider to the sanctions stated in this paragraph if the sanctioning health care provider has notified the sanctioned provider prior to participation in activities covered by this chapter that it prohibits participation in those activities:

(A) 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 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;

(B) 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 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

(C) Termination of contract or other nonmonetary remedies provided by contract if the sanctioned provider participates in activities 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 subparagraph shall be construed to prevent:

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

(ii) A qualified patient from contracting with the qualified patient's attending or alternate 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; and

(3) A health care provider that imposes sanctions pursuant to paragraph (2) shall follow all due process and other procedures the sanctioning health care provider may have, including, at a minimum, reasonable notice and an opportunity for a hearing, that are related to the imposition of sanctions on another health care provider.

For the purposes of this subsection:

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

"Participate" or "participation in activities covered by this chapter":

(1) Means to perform the duties of an attending or alternate physician pursuant to section ‑31, the consulting physician function pursuant to section ‑32, the counseling function pursuant to section ‑33, or the monitoring function pursuant to section ‑41;

(2) Shall not include:

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

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

(D) A qualified patient contracting with the patient's attending or alternate 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.

(c) Suspension or termination of staff membership or privileges under subsection (b) is not reportable or otherwise a basis for action under section 453‑7.5 or 453‑8. Action taken pursuant to section ‑31, ‑32, or ‑33 shall not be the sole basis for a report or complaint of unprofessional or dishonorable conduct under section 453‑7.5 or 453‑8.

(d) 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.

(e) Actions taken pursuant to this chapter shall not be grounds for revocation, limitation, suspension, or denial of licenses under section 453‑8; provided that the health care provider has complied fully with this chapter.

§ ‑52 Liabilities. (a) A person who, without authorization of the qualified 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) Any 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 a request, shall be guilty of a class A 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 shall not preclude criminal penalties applicable under any other law.

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

PART V. FORM OF THE REQUEST

§ ‑61 Form of the request. A request for 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 or alternate physician has determined is a terminal disease 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 or alternate 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:

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

(2) Signed this request in our presence;

(3) Appears to be of sound mind and not under duress, fraud, or undue influence; and

(4) Is not a patient for whom either of us is the attending or alternate physician.

__________________________ Witness 1/Date

__________________________ Witness 2/Date

__________________________ Witness 3/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. The form shall contain checkboxes to indicate the status of each witness with respect to these qualifications."

SECTION 2. Chapter 461, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§461‑ Compliance with death with dignity law. Notwithstanding any law to the contrary, nothing in this chapter shall be deemed to prohibit a registered pharmacist from dispensing medications to a qualified patient, the qualified patient's attending or alternate physician, or an expressly identified agent of the qualified patient for the purpose of ending the qualified patient's life in a humane and dignified manner, as provided in section ‑31(a)(12)(B)(ii)."

SECTION 3. Section 327E-13, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) This chapter shall not authorize mercy killing, assisted suicide, euthanasia, or the provision, withholding, or withdrawal of health care, to the extent prohibited by other statutes of this State[.]; provided that death with dignity under chapter shall be exempt from this section."

SECTION 4. Section 431:10D-108, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) No policy of life insurance shall be delivered or issued for delivery in this State if it contains a provision [~~which~~] that excludes or restricts liability for death caused in a certain specified manner or occurring while the insured has a specified status, except that the policy may contain provisions excluding or restricting coverage as specified therein in event of death under any one or more of the following circumstances:

(1) Death as a result directly or indirectly of war, declared or undeclared, or of any act or hazard of such war;

(2) Death as a result of aviation under conditions specified in the policy;

(3) Death as a result of a specified hazardous occupation or occupations;

(4) Death while the insured is a resident outside of the United States and Canada; or

(5) Death within two years from the date of issue of the policy as a result of suicide, while sane or insane[.]; provided that death with dignity under chapter shall not be considered suicide for purposes of this section."

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	803
TWENTY-SIXTH LEGISLATURE, 2011
STATE OF HAWAII