Report Title:

Advance Health Care Directives; Comfort Care; Persistent Vegetative State or Coma.

 

Description:

Defines "comfort care" and allows comfort care in health-care decisions; clarifies physician finding of persistent vegetative state or coma for purposes of surrogate decision-making; requires health care provider or institution to provide written declination of refusal to comply with advance directive or decisions of agents, surrogates, or guardians; clarifies immunity from liability for health-care providers and institutions that comply with valid advance health care directives; increases penalties for non-compliance. (SD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

2487

TWENTY-FIRST LEGISLATURE, 2002

H.D.1

STATE OF HAWAII

S.D.1


 

A BILL FOR AN ACT

 

RELATING TO DEATH WITH DIGNITY.

 

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

SECTION 1. Section 327E-2, Hawaii Revised Statutes, is amended by:

(1) Adding a new definition to be appropriately inserted and to read as follows:

""Comfort care" means the administration by a health-care provider or institution of whatever quantity of controlled substances as defined in chapter 329 that may be required to alleviate pain and discomfort."

(2) Amending the definition of "health care" to read as follows:

""Health care" means any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect an individual's physical or mental condition, including:

(1) Selection and discharge of health-care providers and institutions;

(2) Approval or disapproval of diagnostic tests, surgical procedures, programs of medication including comfort care, and orders not to resuscitate; and

(3) Direction to provide, withhold, or withdraw artificial nutrition and hydration; provided that withholding or withdrawing artificial nutrition or hydration is in accord with generally accepted health care standards applicable to health-care providers or institutions."

SECTION 2. Section 327E-5, Hawaii Revised Statutes, is amended by amending subsection (g) to read as follows:

"(g) A surrogate who has not been designated by the patient may make all health-care decisions for the patient that the patient could make on the patient's own behalf, except that artificial nutrition and hydration may be withheld or withdrawn for a patient upon a decision of the surrogate only when the primary physician and a second independent physician certify in the patient's medical records that the provision or continuation of artificial nutrition or hydration is merely prolonging the act of dying and the patient is [highly unlikely to have any neurological response in the future.] in a coma, persistent vegetative state, or continuously unconscious, as determined by generally accepted health care standards applicable to health-care providers or institutions.

The surrogate who has not been designated by the patient shall make health-care decisions for the patient based on the wishes of the patient, or, if the wishes of the patient are unknown or unclear, on the patient's best interest.

The decision of a surrogate who has not been designated by the patient regarding whether life-sustaining procedures should be provided, withheld, or withdrawn shall not be based, in whole or in part, on either a patient's preexisting, long-term mental or physical disability, or a patient's economic status. A surrogate who has not been designated by the patient shall inform the patient, to the extent possible, of the proposed procedure and the fact that someone else is authorized to make a decision regarding that procedure."

SECTION 3. Section 327E-7, Hawaii Revised Statutes, is amended by amending subsection (g) to read as follows:

"(g) A health-care provider or institution that declines to comply with an individual instruction or health-care decision shall:

(1) Promptly [so inform] provide in writing the reasons for the declination to the patient[, if possible, and] or any person then authorized to make health-care decisions for the patient;

(2) Provide continuing care to the patient until a transfer can be effected;

(3) Unless the patient or person then authorized to make health-care decisions for the patient refuses assistance, immediately make all reasonable efforts to assist in the transfer of the patient to another health-care provider or institution that is willing to comply with the instruction or decision."

SECTION 4. Section 327E-9, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A health-care provider or institution acting in good faith and in accordance with generally accepted health-care standards applicable to the health-care provider or institution shall not be subject to civil or criminal liability or to discipline for unprofessional conduct for[:

(1) Complying with a health-care decision of a person apparently having authority to make a health-care decision for a patient, including a decision to withhold or withdraw health care;

(2) Declining to comply with a health-care decision of a person based on a belief that the person then lacked authority; or

(3) Complying] complying with an advance health-care directive [and assuming that the directive was valid when made and] signed by the individual or the individual's agent and that has not been revoked or terminated[.]; or complying with a health-care decision of a person having authority pursuant to this chapter to make a health-care decision for a patient, including a decision to withhold or withdraw health care."

SECTION 5. Section 327E-10, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A health-care provider or institution that intentionally violates this chapter shall be subject to liability to the individual or the individual's estate for damages of [$500] $2,500 or actual damages resulting from the violation, whichever is greater, plus reasonable attorney's fees."

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval; provided that section 5 shall take effect on July 1, 2003.