Advance directives

Charges DOH to design a set of policies to improve compliance
with current advance directives law.  Clarifies that patient's
wishes have priority at all times.  Establishes a task force to
review existing statutes on end-of-life care.

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

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The legislature finds that individuals have the
 2 legal right to control their own health care, to make choices,
 3 and to accept or refuse treatment.  In situations where the
 4 patient may not be able to express himself or herself, a
 5 previously prepared living will or durable power of attorney for
 6 health care is permitted.  These instruments allow one to express
 7 one's wishes regarding end-of-life medical care.
 8      Today, only a minority of persons execute these choices.
 9 Some documents are not clear or in proper form.  Some are not
10 located where they can be found when needed.  Many are not
11 forwarded when a patient is transferred from one facility to
12 another.  Many are ignored.
13      Without an advance directive or an active decision by the
14 patient, prevailing medical standards will be followed.  Often,
15 this means that an aggressive, curative approach will be pursued
16 until it is successful or until little or no hope remains.
17      The legislature further finds that even when an advance
18 directive is made, a significant percentage of advanced
19 directives are ignored or not followed by health care providers
20 for a number of reasons, which include:

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 1      (1)  Existing statutes provide few incentives to execute
 2           advance directives;
 3      (2)  They contain few sanctions to encourage compliance; and
 4      (3)  There is no mechanism to determine whether the
 5           provision of the law are being met.
 6      Despite the fact that advance directives possess legal
 7 status, physicians and health care facilities continue to be
 8 influenced by their own opinions of what is in the best interest
 9 of the patient or by the demands and desires of family members or
10 other third parties.  Too often the patient's own expressed
11 instructions are not reflected in the end of life care.
12      Another difficulty is that laws pertaining to end-of-life
13 care, including medical treatment decisions, durable power of
14 attorney for health care, "do not resuscitate" necklaces and
15 bracelets, surrogate decision-makers, and brain death, are
16 scattered throughout the statute.
17      The governor's blue ribbon panel on living and dying with
18 dignity unanimously recommended, among other things, that the
19 contents of the Hawaii Revised Statutes dealing with advance
20 directives for health care, including living wills, be made more
21 specific, their use more widespread, and their provisions more
22 binding.

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 1      The purpose of this Act is to support the execution of
 2 advance directives by:
 3      (1)  Charging the department of health to design a set of
 4           policies to improve compliance with current law;
 5      (2)  Clarifying that patient's wishes have priority at all
 6           times; and
 7      (3)  Establishing a task force to undertake a comprehensive
 8           review of the entire Hawaii Revised Statutes.
 9      SECTION 2.  Section 327D-7, Hawaii Revised Statutes, is
10 amended to read as follows:
11      "[[]327D-7[]]  Patient's wishes supersede declaration.  The
12 desires of a declarant shall at all times supersede the effect of
13 the declaration.  Unless a declaration is revoked or superseded
14 by the desires of the declarant, the patient's wishes as
15 expressed in the patient's declaration shall prevail over the
16 wishes of any other decision-maker or document.  Specifically,
17 the patient's wishes as expressed in the patient's declaration
18 shall be followed as closely as possible by the patient's
19 attending physician even if the patient's wishes differ from the
20 wishes of:
21      (1)  The patient's family or friends;
22      (2)  The lawfully appointed proxy;
23      (3)  The surrogate decision-maker;

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 1      (4)  The guardian; or
 2      (5)  The attorney-in-fact appointed by the patient in a
 3           durable power of attorney for health care decisions
 4           pursuant to section 551D-2.5, or other lawful
 5           representative."
 6      SECTION 3.  The department of health shall develop rules in
 7 accordance to chapter 91, which shall provide health care
 8 facilities guidelines to:
 9      (1)  Improve compliance with existing law; and
10      (2)  Ensure that advance directives will follow the patient
11           in the event of transfer between facilities.
12      SECTION 4.  (a)  There is established in the department of
13 health a task force on advance directives to undertake a
14 comprehensive review of existing advance directives statutes.
15      (b)  The director of health shall designate members to the
16 task force, including:
17      (1)  An attorney or law school professor who practices in
18           health care law or advocacy; and
19      (2)  A health educator.
20      (c)  The task force shall:
21      (1)  Review existing statutes:

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 1           (A)  To simplify and consolidate the statutory
 2                provisions regarding living wills and durable
 3                powers of attorney for health care;
 4           (B)  With the intent to increase the use of advance
 5                directives; and
 6           (C)  To design mechanisms that will increase the
 7                likelihood that advance directives are followed;
 8      (2)  Develop a "physician orders for life-sustaining
 9           treatment" document designed to help health care
10           providers honor the treatment desires of their
11           patients.  The "physician orders for life-sustaining
12           treatment" shall be developed:
13           (A)  With the intent to help primary care physicians,
14                long-term care facilities, home health agencies,
15                emergency medical services, and emergency
16                physicians:
17                (i)  Promote patient autonomy by documenting
18                     patient treatment preferences and
19                     coordinating these with physician orders;
20               (ii)  Enhance the authorized transfer of patient
21                     records between facilities;
22              (iii)  Clarify treatment intentions and minimize
23                     confusion regarding patient treatment
24                     preferences;

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 1              (iv)   Reduce repetitive activities in complying
 2                     with the patient self determination act; and
 3               (v)   Facilitate appropriate treatment by emergency
 4                     medical service personnel;
 5               and
 6           (B) To centralize information, facilitate record
 7               keeping, and ensure transfer of appropriate
 8               information among health care providers and
 9               facilities.
10           The "physician orders for life-sustaining treatment"
11           document shall replace neither advance directive
12           documents nor other physician orders;
13      (3)  Consider replacing chapter 327D, Hawaii Revised
14           Statutes, in its entirety with a statute based upon the
15           Uniform Health Care Decisions Act.  Upon favorable
16           consideration to replace chapter 327D, Hawaii Revised
17           Statutes, the task force shall submit recommended
18           statutory language at least twenty days prior to the
19           convening of the regular session of 2000;
20      (4)  Establish continuing education programs for both the
21           general public and health care providers to promote
22           awareness of the importance of advance directives; and
23      (5)  Encourage the formation of patient advocacy groups to
24           promote greater use of advance directives and
25           compliance with patient's wishes.
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 1      (d)  The task force shall submit its findings,
 2 recommendations, and any proposed statutory changes at least
 3 twenty days prior to the convening of the regular session of
 4 2000.
 5      (e)  The task force on advance directives shall be repealed
 6 on June 30, 2000.
 7      SECTION 5.  Statutory material to be repealed is bracketed.
 8 New statutory material is underscored. 
 9      SECTION 6.  This Act shall take effect upon its approval.
11                       INTRODUCED BY:  ___________________________
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