1155
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO PHYSICIAN ASSISTED DEATH WITH DIGNITY.



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

 1      SECTION 1.  The Legislature finds that under our
 
 2 Constitution of the State of Hawaii, there is a fundamental
 
 3 liberty interest in how a person lives and dies.  Neither the
 
 4 State nor the people of the State can impose a majority will upon
 
 5 an individual in matters of personal dignity and autonomy.
 
 6      The purpose of this Act is to enable an individual who
 
 7 requests it to receive assistance from a physician to end the
 
 8 individual's life when the individual suffers from a terminal
 
 9 illness or from a intractable and unbearable illness.
 
10      The further purpose of this Act is to ensure that:
 
11      (1)  The request for such assistance is complied with only
 
12           when it is fully informed, reasoned, free of undue
 
13           influence from any person, and not the result of a
 
14           distortion of judgment due to clinical depression or
 
15           any other mental illness;
 
16      (2)  All medical alternatives including hospice, palliative
 
17           care and supportive counseling be made available before
 
18           physician assisted death is provided; and
 
19      (3)  Mechanisms are established for continuing oversight and
 

 
a                                                     HTH-39(99)
Page 2                                                     1155
                                     H.B. NO.           
                                                        
                                                        

 
 1           regulation of the provision of such assistance.
 
 2      SECTION 2.  The Hawaii Revised Statutes is amended by adding
 
 3 a new chapter to be appropriately designated and to read as
 
 4 follows:
 
 5                             "CHAPTER
 
 6             PHYSICIAN-ASSISTED DEATH WITH DIGNITY ACT
 
 7          -1   Definitions.  Whenever used in this chapter,
 
 8 unless stated otherwise in text:
 
 9      "Director" means the director of the department.
 
10      "Department" means the department of health.
 
11      "Health care facility" means a hospital, hospice, nursing
 
12 home, long-term residential care facility, or other institution
 
13 providing medical services and licensed or operated in accordance
 
14 with the laws of this state or the United States.
 
15      "Intractable and unbearable illness" means a bodily
 
16 disorder:
 
17      (1)  That cannot be cured or successfully palliated; and
 
18      (2)  That causes such severe suffering that a patient
 
19           prefers death.
 
20      "Physician assisted death" means that at the request of a
 
21 patient the physician provides a medical treatment which has the
 
22 primary purpose of causing the death of the patient in one of the
 
23 following ways:
 

 
a                                                     HTH-39(99)
Page 3                                                     1155
                                     H.B. NO.           
                                                        
                                                        

 
 1      (1)  By providing a "Medical means of suicide", that is,
 
 2           medical substances or devices that the responsible
 
 3           physician prescribes for or supplies to a patient for
 
 4           the purpose of enabling the patient to end the
 
 5           patient's own life; or
 
 6      (2)  By administering a medication which ends the patient's
 
 7           life.
 
 8      "Patient's medical record" means:
 
 9      (1)  In the case of a patient who is in a health care
 
10           facility, the record of the patient's medical care that
 
11           such facility is required by law or professional
 
12           standards to compile and maintain; and
 
13      (2)  In the case of a patient who is not in such a facility,
 
14           the record of the patient's medical care that the
 
15           responsible physician is required by law or
 
16           professional standards to compile and maintain.
 
17      "Person" means any individual, corporation, professional
 
18 corporation, partnership, unincorporated association, government,
 
19 government agency, or any other legal or commercial entity.
 
20      "Responsible physician" means a physician, licensed to
 
21 practice medicine in this state, who:
 
22      (1)  Has full or partial responsibility for treatment of a
 
23           patient who is terminally ill or intractably and
 

 
a                                                     HTH-39(99)
Page 4                                                     1155
                                     H.B. NO.           
                                                        
                                                        

 
 1           unbearably ill; and
 
 2      (2)  Takes responsibility for providing physician assisted
 
 3           death of the patient.
 
 4      "Terminal illness" means a bodily disorder that is likely to
 
 5 cause a patient's death.
 
 6          -2 Discussion with the patient and documentation.(a)
 
 7 Before providing physician assisted death to a patient pursuant
 
 8 to     -3 of this Act, the responsible physician shall:
 
 9      (1)  Offer to the patient all medical care, including
 
10           hospice care, if available, that is consistent with
 
11           accepted clinical practice and that can practicably be
 
12           made available to the patient for the purpose of curing
 
13           or palliating the patient's illness or alleviating
 
14           symptoms, including pain and other discomfort;
 
15      (2)  Refer the patient to a social worker or other
 
16           individual trained and experienced in providing social
 
17           services to determine whether services are available to
 
18           the patient that could improve the patient's
 
19           circumstances sufficiently to cause the patient to
 
20           reconsider his or her request for physician assisted
 
21           death;
 
22      (3)  Counsel the patient to inform the patient's family of
 
23           the request if the patient has not already done so and
 

 
a                                                     HTH-39(99)
Page 5                                                     1155
                                     H.B. NO.           
                                                        
                                                        

 
 1           the responsible physician believes that doing so would
 
 2           be in the patient's interest;
 
 3      (4)  Counsel the patient that the hospital ethics committee
 
 4           and chaplaincy service is available and willing to
 
 5           discuss the patient's care and decision to request for
 
 6           physician assisted death with the patient and/or
 
 7           family; and
 
 8      (5)  Supply to and discuss with the patient all available
 
 9           medical information that is necessary to provide the
 
10           basis for a reasoned decision concerning a request for
 
11           physician assisted death, including all such
 
12           information regarding the patient's diagnosis and
 
13           prognosis, the medical treatment options and the
 
14           medical means of death that can be made available to
 
15           the patient, and their benefits and burdens.
 
16      (b)  At least two adult individuals must witness the
 
17 discussion of medical information required by subsection (a)(5).
 
18 At least one of these individuals must not be affiliated with any
 
19 person involved in the care of the patient and must not stand to
 
20 benefit personally in any way from the patient's death.
 
21      (c)  The responsible physician shall inform each witness
 
22 that each witness may question the responsible physician and the
 
23 patient to ascertain that the patient has, in fact, heard and
 

 
a                                                     HTH-39(99)
Page 6                                                     1155
                                     H.B. NO.           
                                                        
                                                        

 
 1 understood all of the material information discussed pursuant to
 
 2 subsection (a)(5).
 
 3      (d)  The responsible physician shall document discussions
 
 4 with the patient held pursuant to this subsection (a)(5) by means
 
 5 of an audio tape or a video tape of the discussion, during which
 
 6 the witnesses acknowledge their presence, or a written summary of
 
 7 the discussion which the patient reads and signs and which the
 
 8 witnesses attest in writing to be accurate.  This documentation
 
 9 shall be included and retained with the patient's medical record.
 
10 Access to and disclosure of such records and copies of them shall
 
11 be governed by the provisions of     -9 of this Act.
 
12          -3.  Professional consultation and documentation.
 
13 Before providing physician assisted death to a patient pursuant
 
14 to     -4 of this Act, the responsible physician shall:
 
15      (1)  Secure a written opinion from a consulting physician
 
16           who has examined the patient and is qualified to make
 
17           such an assessment that the patient is suffering from a
 
18           terminal illness or an intractable and unbearable
 
19           illness;
 
20      (2)  Secure a written opinion from a licensed psychiatrist,
 
21           clinical psychologist, psychiatric advanced practice
 
22           registered nurse, or psychiatric social worker who has
 
23           examined the patient and is qualified to make such an
 

 
a                                                     HTH-39(99)
Page 7                                                     1155
                                     H.B. NO.           
                                                        
                                                        

 
 1           assessment that the patient has requested physician
 
 2           assisted death and that the patient's request meets the
 
 3           criteria set forth in     -4(a)(4), (5), and (6) of
 
 4           this Act to the effect that the request is not the
 
 5           result of a distortion of the patient's judgment due to
 
 6           clinical depression or any other mental illness, is
 
 7           reasoned, is fully informed, and is free of undue
 
 8           influence by any person; and
 
 9      (3)  Place the written opinions described in paragraphs (1)
 
10           and (2) of this section in the patient's medical
 
11           record.
 
12          -4.  Authorization to provide assistance.(a)  It is
 
13 lawful for a responsible physician who complies in all material
 
14 respects with     -2,   -3, and -5 of this Act to provide a
 
15 patient with a physician assisted death, provided that the
 
16 responsible physician acts on the basis of a reasonable judgment
 
17 that:
 
18      (1)  The patient is eighteen years of age or older;
 
19      (2)  The patient has a terminal illness or an intractable
 
20           and unbearable illness;
 
21      (3)  The patient has made a request of the responsible
 
22           physician to provide physician assisted death;
 
23      (4)  The request is not the result of a distortion of the
 

 
a                                                     HTH-39(99)
Page 8                                                     1155
                                     H.B. NO.           
                                                        
                                                        

 
 1           patient's judgment due to clinical depression or any
 
 2           other mental illness;
 
 3      (5)  The request represents the patient's reasoned choice
 
 4           based on an understanding of the information that the
 
 5           responsible physician has provided to the patient
 
 6           pursuant to     -2(e) of this Act concerning the
 
 7           patient's medical condition and medical options;
 
 8      (6)  The request has been made free of undue influence by
 
 9           any person; that is, it is not made as the result of
 
10           the suggestion, initiation, or coercion of any person;
 
11           and
 
12      (7)  The request has been repeated without self-
 
13           contradiction by the patient on two separate occasions
 
14           at least fourteen days apart, the last of which is no
 
15           more than seventy-two hours before the responsible
 
16           physician provides the patient with a physician
 
17           assisted death.
 
18      (b)  A responsible physician who has provided a patient with
 
19 medical means of suicide in accordance with the provisions of
 
20 this Act may be present if the patient so requests and may assist
 
21 the patient when the patient makes use of such means, provided
 
22 that the actual use of such means is the knowing, intentional,
 
23 and voluntary act of the patient.
 

 
a                                                     HTH-39(99)
Page 9                                                     1155
                                     H.B. NO.           
                                                        
                                                        

 
 1      (c)  A responsible physician who administers medications
 
 2 which end the patient's life in accordance with the provisions of
 
 3 this Act may provide that assistance at the patient's residence
 
 4 or a health care facility provided it is not barred by a policy
 
 5 adopted in accordance with     -10(b) of this act.
 
 6          -5.  Recording and reporting by the responsible
 
 7 physician.  Promptly after providing physician assisted death to
 
 8 a patient, the responsible physician shall:
 
 9      (1)  Record the provision of such means in the patient's
 
10           medical record;
 
11      (2)  Submit a report to the director on such form as the
 
12           director may require pursuant to     -7(a) of this
 
13           Act; and
 
14      (3)  Place a copy of such report in the patient's medical
 
15           record.
 
16          -6.  Actions by persons other than the responsible
 
17 physician.(a)  An individual who acts on the basis of an honest
 
18 belief that the requirements of this Act have been or are being
 
19 met may, if the patient so requests, be present at the time that
 
20 the physician provides physician assisted death;
 
21      (b)  A licensed pharmacist, acting in accordance with the
 
22 laws and regulations of Hawaii that govern the dispensing of
 
23 prescription drugs and devices and controlled substances, may
 

 
a                                                     HTH-39(99)
Page 10                                                    1155
                                     H.B. NO.           
                                                        
                                                        

 
 1 dispense the means for physician assisted death to a responsible
 
 2 physician; and
 
 3      (c)  An individual who acts on the basis of reasonable
 
 4 judgement that the requirements of this Act have been or are
 
 5 being met may counsel or assist the responsible physician in
 
 6 providing physician assisted death to a patient.
 
 7          -7.  Record keeping by the department.(a)  The
 
 8 director shall by regulation specify a form of report to be
 
 9 submitted by physicians pursuant to     -5(b) of this Act in
 
10 order to provide the Department with such data regarding the
 
11 provision of physician assisted death as the director determines
 
12 to be necessary or appropriate to enable effective oversight and
 
13 regulation of the operation of this Act.  Such report shall
 
14 include, at a minimum, the following information:
 
15      (1)  The patient's diagnosis, prognosis, and the alternative
 
16           medical treatments, consistent with accepted clinical
 
17           practice, that the responsible physician advised the
 
18           patient were practicably available;
 
19      (2)  The date on which and the name of the health care
 
20           facility or other place where the responsible physician
 
21           complied with the patient's request for physician
 
22           assisted death, the medical means of death which was
 
23           used, and the method of recording the discussion
 

 
a                                                     HTH-39(99)
Page 11                                                    1155
                                     H.B. NO.           
                                                        
                                                        

 
 1           required by     -2(e) of this Act;
 
 2      (3)  The patient's vital statistics, including county of
 
 3           residence, age, sex, race and marital status;
 
 4      (4)  The type of medical insurance and name of insurer of
 
 5           the patient, if any;
 
 6      (5)  The names of the responsible physician, the medical and
 
 7           mental health consultants who delivered opinions
 
 8           pursuant to     -3 of this Act, and the witnesses
 
 9           required by     -2(e) of this Act; and
 
10      (6)  The location of the patient's medical record.
 
11      (b)  The director shall require that the report described in
 
12 subsection (a) not include the name of the patient and shall
 
13 provide by regulation for an anonymous coding or reference system
 
14 that enables the director or the responsible physician to
 
15 associate such report with the patient's medical record.
 
16          -8.  Enforcement and reporting by the department.(a)
 
17 The director shall enforce the provisions of this Act and shall
 
18 report to the Attorney General and the Board of Medical Examiners
 
19 any violation of its provisions.
 
20      (b)  The director shall promulgate such rules and
 
21 regulations as the director determines to be necessary or
 
22 appropriate to implement and achieve the purposes of this Act and
 
23 shall, at least ninety days prior to adopting any rule or
 

 
a                                                     HTH-39(99)
Page 12                                                    1155
                                     H.B. NO.           
                                                        
                                                        

 
 1 regulation affecting the conduct of a physician acting under the
 
 2 provisions of this Act, submit such proposed rule or regulation
 
 3 to the Board of medical examiners for such board's review and
 
 4 advice.
 
 5      (c)  The board of medical examiners shall promulgate no rule
 
 6 or regulation inconsistent with the provisions of this Act or
 
 7 with the rules and regulations of the Department promulgated
 
 8 under it and shall, at least ninety days prior to adopting any
 
 9 rule or regulation affecting the conduct of a physician acting
 
10 under the provisions of this Act, submit such proposed rule or
 
11 regulation to the director for the director's review and advice.
 
12      (d)  The director shall report to the Legislature annually
 
13 concerning the operation of this Act and the achievement of its
 
14 stated purposes.  The report of the director shall be made
 
15 available to the public upon its submission to the Legislature.
 
16 In order to facilitate such annual reporting, the director may
 
17 collect and review such information as the director determines to
 
18 be helpful to the department, the board of medical examiners, or
 
19 Legislature and may by regulation require the submission of such
 
20 information to the department.
 
21          -9. Confidentiality of records and reports.(a) The
 
22 information that a person acting under this Act obtains from or
 
23 about a patient is confidential and may not be disclosed to any
 

 
a                                                     HTH-39(99)
Page 13                                                    1155
                                     H.B. NO.           
                                                        
                                                        

 
 1 other person without the patient's consent or the consent of a
 
 2 person with lawful authority to act on the patient's behalf,
 
 3 except as this Act or any other provision of law may otherwise
 
 4 require; and
 
 5      (b)    The report that a responsible physician files with
 
 6 the Department pursuant to     -5(b) of this Act shall be
 
 7 confidential pursuant to section 92F-13(4), Hawaii Revised
 
 8 Statutes, to preserve the dignity and privacy of the patient
 
 9 concerning extremely intimate and personal decisions, and to
 
10 avoid having fear of public disclosure influence the decision
 
11 making process.
 
12          -10. Provider's freedom of conscience.(a)  No
 
13 individual who is conscientiously opposed to providing a patient
 
14 with physician assisted death may be required to do so or to
 
15 assist a responsible physician in doing so; and
 
16      (b)    A health care facility that has adopted a policy
 
17 opposed to providing patients with physician assisted death and
 
18 has given reasonable notice of such policy to its staff members
 
19 may prohibit such staff members from providing such means to a
 
20 patient who is within its facilities or under its care.
 
21          -11. Patient's freedom from discrimination.(a)  No
 
22 physician, health care facility, health care service plan,
 
23 provider of health or disability insurance, self-insured employee
 

 
a                                                     HTH-39(99)
Page 14                                                    1155
                                     H.B. NO.           
                                                        
                                                        

 
 1 health care benefit plan, or hospital service plan may require
 
 2 any individual to request physician assisted death as a condition
 
 3 of eligibility for service, benefits, or insurance.  No such
 
 4 physician or entity may refuse to provide medical services or
 
 5 medical benefits to an individual because such individual has
 
 6 requested physician assisted death, except as     -10 of this
 
 7 Act permits; and
 
 8      (b)    A patient's use of physician assisted death in
 
 9 compliance with the applicable provisions of this Act shall not
 
10 be considered suicide for the purpose of voiding a policy of
 
11 insurance on the life of such patient.
 
12          -12.  Immunities.(a)  No person who has acted in
 
13 compliance with the applicable provisions of this Act in
 
14 providing assisted death to an individual shall be subject to
 
15 civil or criminal liability therefor;
 
16      (b)  No individual who has acted in compliance with the
 
17 applicable provisions of this Act in providing physician assisted
 
18 death to a patient shall be subject therefor to professional
 
19 sanction, loss of employment, or loss of privileges, provided
 
20 that such action does not violate a policy of a health care
 
21 facility which complies with     -10(b) of this Act; and
 
22      (c)  Except as provided in paragraphs (a) and (b) of this
 
23 section, this Act does not limit the civil, criminal or
 

 
a                                                     HTH-39(99)
Page 15                                                    1155
                                     H.B. NO.           
                                                        
                                                        

 
 1 disciplinary liability of any person for intentional or negligent
 
 2 misconduct.
 
 3          -13.  Criminal penalties.(a)  In addition to any
 
 4 other civil, criminal, or disciplinary liability which the
 
 5 individual may otherwise incur thereby, an individual who
 
 6 willfully violates     -2, -3, -4, -5, or -6 of this Act is
 
 7 guilty of a Class B felony manslaughter.
 
 8      (b)  Any person that attempts to pressure a patient to
 
 9 request physician assisted death shall be prosecuted and is
 
10 guilty of a Class C felony manslaughter.
 
11          -14. Severability.  If any section of this chapter is
 
12 held invalid as to any person or circumstance then the invalidity
 
13 of that section shall not affect the application of any other
 
14 section of this chapter which can be given full effect without
 
15 the invalid section or application.
 
16          -15.  No effect.  This chapter shall not affect the
 
17 validity or administration of chapter 327D, Hawaii Revised
 
18 Statutes.
 
19      SECTION 3.  Section 841-3, Hawaii Revised Statutes is
 
20 amended to read as follows:
 
21      "841-3.  Duties.  As soon as any coroner or deputy coroner
 
22 has notice of the death of any person within the coroner's or
 
23 deputy coroner's jurisdiction as the result of violence, or as
 

 
a                                                     HTH-39(99)
Page 16                                                    1155
                                     H.B. NO.           
                                                        
                                                        

 
 1 the result of any accident, or by suicide, or suddenly when in
 
 2 apparent health, or when unattended by a physician, or in prison,
 
 3 or in a suspicious or unusual manner, or within twenty-four hours
 
 4 after admission to a hospital or institution, the coroner or
 
 5 deputy coroner shall forthwith inquire into and make a complete
 
 6 investigation of the cause of death.
 
 7      Any person who becomes aware of the death of any person
 
 8 under any of the circumstances set forth above shall immediately
 
 9 notify the coroner or deputy corner of the known facts concerning
 
10 the time, place, manner, and circumstances of the death.
 
11      Any person who fails to report the death of a person under
 
12 circumstances covered herein shall be subject to a fine of not
 
13 more than $100.  This section shall not apply to any person who,
 
14 in providing physician-assisted death to a patient, has acted in
 
15 compliance with provisions of the Physician-Assisted Death With
 
16 Dignity Act."
 
17      SECTION 4.  Section 327D-13, Hawaii Revised Statutes, is
 
18 repealed.
 
19      ["[327D-13] Mercy killing or euthanasia prohibited.
 
20 Nothing in the chapter shall be construed to condone, authorize,
 
21 or approve mercy killing or euthanasia."]
 
22      SECTION 5.  Statutory material to be repealed is bracketed.
 
23 New material is underscored.
 

 
a                                                     HTH-39(99)
Page 17                                                    1155
                                     H.B. NO.           
                                                        
                                                        

 
 1      SECTION 6.  This Act shall take effect upon its approval.
 
 2 
 
 3                           INTRODUCED BY:  _______________________
 

 
a                                                     HTH-39(99)