HOUSE OF REPRESENTATIVES

H.B. NO.

2218

TWENTY-NINTH LEGISLATURE, 2018

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to voluntary assisted dying.

 

 

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

 


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

"Chapter

voluntary assisted dying

PART I. GENERAL PROVISIONS

-1 Definitions. As used in this chapter, unless the context requires otherwise:

"Contact person" means the person appointed to return any unused or remaining voluntary assisted dying substance to the dispensing pharmacy.

"Decision-making capacity" means a person:

(1) Understands the information relevant to the decision relating to access to voluntary assisted dying and the effect of the decision;

(2) Retains that information to the extent necessary to make the decision;

(3) Uses or weighs that information as part of the process of making the decision; and

(4) Communicates the decision and the person's views and needs as to the decision in some way, including by speech, gestures, or other means.

"De-identified" means personal information or health information that no longer relates to an identifiable individual or an individual who can be reasonably identified.

"Director" means the director of health.

"Dispensing pharmacy" means the pharmacy that dispenses the voluntary assisted dying substance and whose pharmacists are all licensed under chapter 461.

"Ineligible witness" is a person who:

(1) Knows or believes oneself to:

(A) Be a beneficiary under a will of the person making the declaration requesting access to voluntary assisted dying; or

(B) Benefit financially or in any other material way from the death of the person making the declaration;

(2) Is an owner of, or is responsible for the day-to-day operation of, any health care facility at which:

(A) The person making the declaration requesting access to voluntary assisted dying is being treated; or

(B) The person making the declaration resides; or

(3) Is directly involved in providing health care services or professional care services to the person making the declaration requesting access to voluntary assisted dying.

"Second assessment physician" means the physician who accepts a referral to conduct a second assessment of the person requesting access to voluntary assisted dying.

"Treating physician" means the physician who accepts the preliminary request of a person requesting access to voluntary assisted dying or a second assessment physician for the person who accepts a transfer of the role of treating physician.

"Voluntary assisted dying" means the administration of a voluntary assisted dying substance.

"Voluntary assisted dying permit" includes a self-administration permit and a physician administration permit.

"Voluntary assisted dying substance" means a controlled substance specified in a voluntary assisted dying permit for the purpose of causing a person's death.

-2 Eligible persons. No person shall be eligible to request and access voluntary assisted dying under this chapter unless the person:

(1) Is eighteen years of age or older;

(2) Is a citizen or permanent resident alien of the United States;

(3) Is a resident of the State for at least twelve consecutive months prior to making a preliminary request to access voluntary assisted dying under this chapter;

(4) Holds decision-making capacity in relation to voluntary assisted dying;

(5) Is diagnosed with a disease, illness, or medical condition that is:

(A) Incurable;

(B) Advanced, progressive, and is expected to cause death within six months; and

(C) Causing suffering to the person that cannot be relieved in a manner that the person considers tolerable; and

(6) Is voluntarily and without coercion seeking to access voluntary assisted dying under this chapter.

PART II. REQUESTING ACCESS TO VOLUNTARY ASSISTED DYING AND ASSESSMENT OF ELIGIBILITY

A. Preliminary Request

-3 Preliminary request. (a) No person shall make a request for access to voluntary assisted dying unless the person makes a preliminary request to a physician who is licensed under chapter 453.

(b) The preliminary request for access to voluntary assisted dying shall be:

(1) Clear and unambiguous; and

(2) Made by the person verbally or by gestures or other means of communication available to the person.

(c) A person who makes a preliminary request may decide at any time not to continue the request for access to voluntary assisted dying. The decision shall terminate continued access.

(d) No termination of the request under subsection (c) shall prohibit the person from making a new preliminary request for access to voluntary assisted dying.

-4 Physician decision to accept preliminary request. (a) Within seven days after receiving a preliminary request from a person, the physician to whom the request was made shall inform the person that the physician:

(1) Accepts the preliminary request; or

(2) Refuses the preliminary request, because the physician has a conscientious objection to voluntary assisted dying.

(b) A physician who accepts the preliminary request shall record the physician's decision to accept the preliminary request and the preliminary request in the person's medical record.

(c) Upon acceptance of a person's preliminary request, the physician to whom the request was made shall be deemed the treating physician for the person.

-5 First assessment of the preliminary request. (a) The treating physician shall assess whether the person requesting access to voluntary assisted dying meets the eligibility criteria under section -2.

(b) The treating physician may use the services of consulting physicians licensed under chapter 453 in order to make the assessment under subsection (a).

(c) If the treating physician is satisfied that the person meets the eligibility criteria under section -2, the treating physician shall inform the person about the following matters:

(1) The person's diagnosis and prognosis;

(2) The treatment options available to the person and the likely outcomes of that treatment;

(3) Palliative care options available to the person and the likely outcomes of that care;

(4) The potential risks of taking a voluntary assisted dying substance;

(5) Death as the expected outcome of taking a voluntary assisted dying substance referred to in paragraph (4); and

(6) The person's freedom at any time to decide not to continue with voluntary assisted dying.

(d) No treating physician shall assess the person as eligible for access to voluntary assisted dying unless the treating physician is satisfied that:

(1) The person meets the eligibility criteria under section -2 for access to voluntary assisted dying; and

(2) The person understands the information provided under subsection (c).

(e) Within seven days after completing the first assessment, the treating physician shall:

(1) Notify the person requesting access to voluntary assisted dying of the treating physician's decision under subsection (d); and

(2) Complete the first assessment report on a form prescribed by the director and provide a copy of the report to the director.

-6 Second assessment referral. (a) If the treating physician assesses the person as eligible for access to voluntary assisted dying, the treating physician shall refer the person to another physician licensed under chapter 453 for a second assessment; provided that the physician from whom a second assessment is sought is not a physician used as a consulting physician under section -5(b).

(b) Within seven days after receiving the referral from the treating physician, the physician to whom the referral for a second assessment was made shall inform the person requesting access to voluntary assisted dying and the treating physician that the physician:

(1) Accepts the referral; or

(2) Refuses the referral, because the physician has a conscientious objection to voluntary assisted dying.

(c) A physician who accepts the referral shall record the physician's decision to accept the referral and the referral in the person's medical record.

(d) Upon acceptance of the referral, the physician shall be deemed the second assessment physician for the person.

-7 Second assessment; requirements. (a) The second assessment physician shall assess whether the person requesting access to voluntary assisted dying meets the eligibility criteria under section -2.

(b) The second assessment physician may use the services of consulting physicians licensed under chapter 453 in order make the assessment under subsection (a).

(c) If the second assessment physician is satisfied that the person meets the eligibility criteria under section -2, the second assessment physician shall inform the person about the matters listed in section -5(c).

(d) No second assessment physician shall assess the person as eligible for access to voluntary assisted dying unless the second assessment physician is satisfied that:

(1) The person meets the eligibility criteria under section -2 for access to voluntary assisted dying; and

(2) The person understands the information provided under section -5(c).

(e) Within seven days after completing the second assessment, the second assessment physician shall:

(1) Notify the person requesting access to voluntary assisted dying of the second assessment physician's decision under subsection (d); and

(2) Complete the second assessment report on a form prescribed by the director and provide a copy of the report to:

(A) The treating physician; and

(B) The director.

-8 Transfer of treating physician role. (a) The treating physician for a person may transfer the role of treating physician in accordance with this section at the request of either:

(1) The person; or

(2) The treating physician.

(b) The treating physician for a person may transfer the role of treating physician to the second assessment physician for the person, if:

(1) The second assessment physician has assessed the person as eligible for access to voluntary assisted dying; and

(2) The second assessment physician accepts the request of the treating physician to be transferred the role.

(c) Within seven days after being requested by the treating physician to accept a transfer of the treating physician role, the second assessment physician shall inform the treating physician as to whether the second assessment physician accepts or refuses the transfer of the role.

(d) If the second assessment physician refuses the transfer of the role of treating physician, the treating physician for the person may:

(1) Refer the person to another physician licensed under chapter 453 to conduct another second assessment; and

(2) Transfer the role of treating physician to the other physician referenced under paragraph (1), if the other physician:

(A) Accepts the referral to conduct another second assessment;

(B) Assesses the person as eligible for access to voluntary assisted dying; and

(C) Accepts the transfer of the role.

(e) If the physician referenced under subsection (d)(1) accepts a referral to conduct another second assessment, the prior second assessment is voided.

B. Written Declaration

-9 Written declaration. (a) No person who is assessed as eligible for access to voluntary assisted dying shall continue with voluntary assisted dying unless the person makes a written declaration requesting access to voluntary assisted dying as required under this subpart.

(b) The written declaration shall:

(1) Specify that the person:

(A) Makes the declaration voluntarily and without coercion; and

(B) Understands the nature and the effect of the declaration the person is making; and

(2) Be signed by the person making the declaration, in the presence of two witnesses and the treating physician.

(c) Notwithstanding subsection (b), a person other than the person making the written declaration may sign the written declaration, if:

(1) The person making the declaration is unable to sign the declaration;

(2) The person who signs the declaration signs the declaration at the direction of, and on behalf of, the person making the declaration;

(3) The person who signs the declaration is:

(A) Eighteen years of age or older; and

(B) Not acting as a witness to the signing of the declaration; and

(4) The person who signs the declaration does so in the presence of the person making the declaration.

-10 Witnesses. (a) No person shall be eligible to witness the making of a written declaration unless the person:

(1) Is eighteen years of age or older; and

(2) Is not an ineligible witness.

(b) Not more than one witness may be a family member of the person making the declaration.

-11 Certification of witness to signing of written declaration. (a) Pursuant to section -9(b), a person who serves as a witness to a person who both makes and signs a written declaration shall certify in writing in the declaration that:

(1) The person making and signing the declaration appeared to freely and voluntarily make and sign the declaration;

(2) The person making and signing the declaration appeared to have decision-making capacity in relation to voluntary assisted dying;

(3) The person making and signing the declaration appeared to understand the nature and effect of making and signing the declaration; and

(4) The person serving as a witness is not knowingly an ineligible witness.

(b) Pursuant to section -9(c), a person who serves as a witness to another person who signs a written declaration at the direction of, and on behalf of, the person who makes the declaration shall certify in writing in the declaration that:

(1) The person making the declaration appeared to freely and voluntarily direct the other person to sign the declaration;

(2) The other person signed the declaration in the presence of the person serving as a witness and the person making the declaration;

(3) The person making the declaration appeared to have decision-making capacity in relation to voluntary assisted dying;

(4) The person making the declaration appeared to understand the nature and effect of making the declaration; and

(5) The person serving as a witness is not knowingly an ineligible witness.

(c) A person who serves as a witness shall certify the declaration in the presence of the treating physician.

C. Final Request

-12 Final request. (a) No person who requests access to voluntary assisted dying and who makes a written declaration pursuant to section   -9 shall continue with voluntary assisted dying unless the person makes a final request for access to voluntary assisted dying as required under this subpart.

(b) The person shall make the final request to the treating physician verbally or by gestures or other means of communication available to the person.

-13 Timing of final request. A person shall make the final request under section   -12 no earlier than one day after the date on which the second assessment physician assesses that the person is eligible to access voluntary assisted dying.

-14 Contact person. (a) After making a final request for access to voluntary assisted dying, a person shall appoint a person who is eighteen years of age or older as the contact person.

(b) The contact person shall return any unused or remaining voluntary assisted dying substance to the dispensing pharmacy.

-15 Requirements for appointment of contact person. (a) An appointment of the contact person shall:

(1) Be made on a contact person appointment form prescribed by the director; and

(2) Be signed:

(A) By the person making the appointment;

(B) By the person being appointed; and

(C) In the presence of another person who is eighteen years of age or older.

(b) Notwithstanding subsection (a)(2)(A), the person making the appointment may direct another person to sign a contact person appointment form, if:

(1) The person making the appointment is unable to sign the form; and

(2) The person signing the form:

(A) Is eighteen years of age or older;

(B) Is not acting as a witness to the signing of the form; and

(C) Is not the person to be appointed as the contact person.

(c) A person who signs a contact person appointment form on behalf of the person making the appointment shall do so in the presence of the person making the appointment.

-16 Final review of final request. (a) Upon receipt of a final request, the treating physician for the person requesting access to voluntary assisted dying shall perform the final review by:

(1) Reviewing the following forms completed under this part:

(A) The first assessment report form as referenced under section -5(e)(2);

(B) The second assessment report form as referenced under section -7(e)(2);

(C) The written declaration under section -9; and

(D) The contact person appointment form as referenced under section -15(a)(1);

(2) Completing the final review on a final review form prescribed by the director; and

(3) Certifying whether or not the request for access to voluntary assisted dying has been completed as required under this chapter.

(b) The treating physician shall complete the final review form and, within seven days thereafter, provide a copy of the completed final review form to the director, accompanied by copies of all forms referred to in subsection (a)(1).

-17 Technical error not to invalidate request and assessment process. The validity of the request for access to voluntary assisted dying shall not be affected by any minor or technical error in a final review form or any form referred to in section -16(a)(1).

-18 Application for voluntary assisted dying permit. Once the treating physician certifies in the final review form that the request for access to voluntary assisted dying has been completed as required under this chapter, the treating physician shall apply under section -23 or -24 for a voluntary assisted dying permit for the person.

-19 No obligation to continue access to voluntary assisted dying. A person whose final review is completed and certified may decide at any time not to continue with voluntary assisted dying.

PART III. VOLUNTARY ASSISTED DYING PERMITS

A. Types of Permits and the Scopes of their Authorization

-20 Types of voluntary assisted dying permits. There shall be two types of voluntary assisted dying permits under this chapter:

(1) A self-administration permit, as set forth under section -21; and

(2) A physician administration permit, as set forth under section -22.

-21 Self-administration permit. A self-administration permit, on a form prescribed by the director, shall authorize:

(1) The treating physician to prescribe and supply the voluntary assisted dying substance specified in the permit to the person who is the subject of the permit for the purpose of causing the person's death; provided that:

(A) The person is able to self-administer the voluntary assisted dying substance; and

(B) The voluntary assisted dying substance is of a sufficient dosage to cause death;

(2) The person who is the subject of the permit to obtain, possess, store, use, and self-administer the voluntary assisted dying substance;

(3) The contact person specified in the permit, upon the death of the person who is the subject of the permit, to:

(A) Possess and store the unused or remaining voluntary assisted dying substance, if any, for the purpose of returning the substance to the dispensing pharmacy; and

(B) Carry and transport the unused or remaining voluntary assisted dying substance, within fifteen days after the date of the person's death, to the dispensing pharmacy; and

(4) The contact person specified in the permit, upon the decision of the person who is the subject of the permit either to make a request under section -29 or to not self-administer, or upon the director ordering the return of the voluntary assisted dying substance to the dispensing pharmacy, to:

(A) Possess and store the voluntary assisted dying substance, if any, that was dispensed to the person; and

(B) Carry and transport the voluntary assisted dying substance to the dispensing pharmacy.

-22 Physician administration permit. A physician administration permit, on a form prescribed by the director, shall authorize the treating physician:

(1) To prescribe and supply to the person who is the subject of the permit the voluntary assisted dying substance specified in the permit in a sufficient dose to cause the death of the person;

(2) In the presence of a witness, to receive the final order under section -41; and

(3) To possess, use, and administer, in the presence of a witness, the voluntary assisted dying substance; provided that:

(A) The person is physically incapable of the self-administration or digestion of the voluntary assisted dying substance;

(B) The person, when giving the final order, has decision-making capacity in relation to voluntary assisted dying;

(C) The person, in requesting access to voluntary assisted dying, is acting voluntarily and without coercion; and

(D) The person is administered the voluntary assisted dying substance immediately after the person gives the physician the final order under section    -41.

B. Applying for Voluntary Assisted Dying Permits

-23 Applying for self-administration permit. (a) Subject to subsection (c), the treating physician, on behalf of the person requesting access to voluntary assisted dying, shall apply to the director for a self-administration permit if the person is physically able to self-administer and digest the voluntary assisted dying substance.

(b) An application for a self-administration permit shall:

(1) Be on a form prescribed by the director;

(2) Identify the person who is the subject of the permit;

(3) Specify the voluntary assisted dying substance that the physician seeks to prescribe or supply in a sufficient dose to the person, for the purpose of self-administration to cause the person's death;

(4) Specify the contact person for the person;

(5) Be accompanied by a copy of the completed final review form and all forms referred to in section    ‑16(a)(1); and

(6) Be accompanied by a statement that the physician is satisfied regarding the matters specified in subsection (c).

(c) The treating physician shall not apply for a self-administration permit unless the treating physician is satisfied that the person has decision-making capacity in relation to voluntary assisted dying.

-24 Applying for physician administration permit. (a) Subject to subsection (c), the treating physician shall apply to the director for a physician administration permit, if the person requesting access to voluntary assisted dying intends the physician to supply and administer the voluntary assisted dying substance.

(b) An application for a physician administration permit shall:

(1) Be on a form prescribed by the director;

(2) Identify the person who is the subject of the permit;

(3) Specify the voluntary assisted dying substance that the physician seeks to prescribe, supply, and administer to the person in a sufficient dose to cause the person's death;

(4) Specify the contact person;

(5) Be accompanied by a copy of the completed final review form and all forms referred to in section    ‑16(a)(1);

(6) Be accompanied by a statement that the physician is satisfied regarding the matters specified in subsection (c); and

(7) If the person is the subject of a self-administration permit that is canceled under section -28, be accompanied by evidence to the satisfaction of the director that:

(A) The physician has destroyed any unfilled prescription under the self-administration permit; or

(B) The dispensing pharmacy has disposed of any voluntary assisted dying substance supplied under the self-administration permit.

(c) The treating physician shall not apply for a physician administration permit unless the treating physician is satisfied that:

(1) The person is physically incapable of the self-administration or digestion of a voluntary assisted dying substance; and

(2) The person has decision-making capacity in relation to voluntary assisted dying.

-25 Acceptance or rejection of application for a voluntary assisted dying permit; judicial review. (a) Within seven days of receiving an application for a voluntary assisted dying permit under either section -23 or -24, the director shall issue or refuse to issue a voluntary assisted dying permit.

(b) If the director refuses to issue a voluntary assisted dying permit, the director shall provide the reasons for the decision in a written notification to the treating physician.

(c) The voluntary assisted dying permit shall be on a form to be prescribed by the director.

(d) Any person who is aggrieved by the decision of the director to refuse to issue a voluntary assisted dying permit under subsection (a) may obtain judicial review of the refusal in the circuit court of the circuit in which the person resides.

-26 Operation of voluntary assisted dying permit. A voluntary assisted dying permit shall become valid from the date specified in the permit.

-27 Amendment of voluntary assisted dying permit. (a) The director may amend a voluntary assisted dying permit in order to correct an administrative error or a minor defect, if the treating physician requests the correction.

(b) The director shall notify the treating physician in writing of any amendment made to the permit under subsection (a).

-28 Cancellation of self-administration permit. A self-administration permit shall be deemed canceled, if:

(1) The treating physician destroys any unfilled prescription; or

(2) The dispensing pharmacy completes a voluntary assisted dying substance disposal form prescribed by the director, and provides a copy of the completed form to the director.

C. Later Physical Incapacity of Person to Self-Administer Voluntary Assisted Dying Substance

-29 Subsequent request for a physician administration permit. (a) A person who is the subject of a self-administration permit may request the treating physician to apply for a physician administration permit if the person loses the physical capacity to self-administer or digest the voluntary assisted dying substance specified in the self-administration permit.

(b) The person shall make the request verbally or by gestures or other means of communication available to the person.

-30 Destruction of unfilled prescription by treating physician. The treating physician, upon receiving a request under section -29, shall destroy any unfilled prescription written for the self-administration permit.

-31 Return of any dispensed voluntary assisted dying substance. Prior to making a request under section -29 and if the voluntary assisted dying substance has been supplied to the person, the person or the contact person shall return the voluntary assisted dying substance to the dispensing pharmacy.

-32 Application for a physician administration permit upon cancellation of a self-administration permit. A request under section -29 shall be deemed a cancellation of the self-administration permit.

PART IV. ACCESSING VOLUNTARY ASSISTED DYING AND DEATH

A. Self-Administration

-33 Information prior to prescription. The treating physician, before prescribing a voluntary assisted dying substance in accordance with a self-administration permit, shall inform the person of the following:

(1) The methods of self-administering the voluntary assisted dying substance;

(2) The non-obligatory nature of obtaining the voluntary assisted dying substance and the freedom to return an unfilled prescription to the treating physician at any time;

(3) The requirement that the voluntary assisted dying substance shall be stored in a locked box;

(4) The non-obligatory nature of self-administering the voluntary assisted dying substance;

(5) The return for destruction of any unfilled prescription to the treating physician;

(6) The return for disposal of any dispensed voluntary assisted dying substance to the dispensing pharmacy if the person decides not to self-administer; and

(7) The contact person's duty, once the person dies, to return for disposal any dispensed but unused voluntary assisted dying substance to the dispensing pharmacy.

-34 Prescription. (a) The treating physician or an advanced practice registered nurse with prescriptive authority granted under section 457-8.6 who is acting under the direction of the treating physician shall prepare a prescription for a voluntary assisted dying substance in accordance with section 329-38(i) and transmit it by facsimile to the dispensing pharmacy. The treating physician or the advanced practice registered nurse shall maintain the original prescription in accordance with section 329-36. The treating physician or the advanced practice registered nurse shall note on the prescription that the prescription is based upon a self-administration permit.

(b) The dispensing pharmacy shall note on the face of the facsimile prescription in red ink "VAD" and this facsimile shall serve as the original written prescription for purposes of section 329-38 and the dispensing pharmacy shall maintain it in accordance with section 329-36.

-35 Information upon dispensing. The dispensing pharmacy, upon dispensing a prescription for a voluntary assisted dying substance, shall inform the person to whom the voluntary assisted dying substance is being dispensed regarding the matters contained under section -33(1), (3), (4), (6), and (7).

-36 Labeling requirements on package or container. (a) In addition to any other labeling requirements required by law, the dispensing pharmacy shall attach a labeling statement in writing to the relevant package or container that:

(1) Warns of the purpose of the voluntary assisted dying substance;

(2) States the dangers of self-administering the voluntary assisted dying substance;

(3) States that the voluntary assisted dying substance shall be stored in a locked box; and

(4) States that any unused or remaining voluntary assisted dying substance shall be returned to the dispensing pharmacy by the person to whom it was dispensed or by the contact person.

(b) A labeling statement shall be made on a form to be prescribed by the director.

-37 Pharmacy recording and notification requirements. (a) The dispensing pharmacy shall immediately record in a voluntary assisted dying substance dispensing form prescribed by the director that:

(1) The voluntary assisted dying substance was dispensed; and

(2) The requirements of sections -35 and -36 were satisfied.

(b) Within seven days after dispensing the voluntary assisted dying substance, the dispensing pharmacy shall complete the voluntary assisted dying substance dispensing form and provide a copy of the form to the director.

-38 Secure storage of voluntary assisted dying substance. The person to whom a voluntary assisted dying substance has been dispensed shall store the substance in a locked box.

-39 Dispensing pharmacy to dispose of returned voluntary assisted dying substance. If a person who is the subject of a self-administration permit or the contact person specified in the self-administration permit returns any of the dispensed voluntary assisted dying substance to the dispensing pharmacy, the dispensing pharmacy shall dispose of the substance as soon as practicable.

-40 Dispensing pharmacy to record and notify of disposal of returned voluntary assisted dying substance. (a) A dispensing pharmacy that disposes of a voluntary assisted dying substance pursuant to section -39 shall immediately record the disposal in a voluntary assisted dying substance disposal form prescribed by the director.

(b) Within seven days after disposing of the voluntary assisted dying substance, the dispensing pharmacy shall complete the voluntary assisted dying substance disposal form and provide a copy of the form to the director.

B. Physician Administration

-41 Final order for physician administration. (a) No person shall give the final order to the treating physician to administer the voluntary assisted dying substance specified in the physician administration permit, unless:

(1) The person is the subject of the physician administration permit;

(2) The person has decision-making capacity in relation to voluntary assisted dying; and

(3) The person understands that the voluntary assisted dying substance shall be administered immediately after the final order is given.

(b) The person shall give the final order:

(1) Verbally or by gesture or other means of communication available to the person; and

(2) In the presence of a witness.

(c) The treating physician shall refuse to accept the person's final order if the treating physician is not satisfied of any matter listed under subsection (a).

-42 Witnessing the final order and administration of the voluntary assisted dying substance. (a) For the purposes of section -22(2) and (3) and section -41(b)(2), a witness to a person's giving the final order to administer the voluntary assisted dying substance and the treating physician's administration of the voluntary assisted dying substance shall be:

(1) Eighteen years of age or older; and

(2) Unrelated by blood or marriage to the treating physician who will administer the voluntary dying substance to the person.

(b) In the physician administration form prescribed by the director, the witness shall:

(1) Certify in writing that:

(A) The person giving the final order appeared at that time to have decision-making capacity in relation to voluntary assisted dying; and

(B) The person requesting access to voluntary assisted dying appeared to be acting voluntarily and without coercion when making that request; and

(2) State that the treating physician administered the voluntary assisted dying substance to the person.

-43 Certification by treating physician following physician administration of voluntary assisted dying substance. (a) The treating physician who has administered the voluntary assisted dying substance to the person requesting it shall certify in writing on the physician administration form that the treating physician is satisfied that:

(1) The person was physically incapable of the self-administration or digestion of the voluntary assisted dying substance;

(2) The person, when giving the final order to administer the voluntary assisted dying substance, had decision-making capacity in relation to voluntary assisted dying; and

(3) The person, when requesting access to voluntary assisted dying, acted voluntarily and without coercion.

(b) Within seven days after administering a voluntary assisted dying substance, the treating physician shall complete and certify the physician administration form and provide a copy to the director.

C. Notifications of Death and Reports

-44 Notification of death to the director. The treating physician shall notify the director on a form to be prescribed by the director of the death of a person who requested access to voluntary assisted dying; provided that the treating physician shall note:

(1) That the physician had knowledge that the person was the subject of a voluntary assisted dying permit;

(2) The disease, illness, or medical condition that was the grounds for the person to access voluntary assisted dying;

(3) Whether the person was the subject of a self-administration permit or a physician administration permit; and

(4) Whether or not the person accessed voluntary assisted dying from the administration of the voluntary assisted dying substance as specified in the permit.

-45 Filing and preparation of death certificates. In addition to the requirements under chapter 338, if a death results from voluntary assisted dying, the treating physician shall certify the cause of death as the disease, illness, or medical condition that was the grounds for the person to access voluntary assisted dying.

-46 Director to provide information to the contact person after notification of the person's death. Within seven days of notification by the treating physician of the person's death, the director shall provide information to the contact person that:

(1) Sets out the requirement under section -21(3) to return any unused or remaining voluntary assisted dying substance to the dispensing pharmacy; and

(2) Outlines the support services available to assist the contact person with the performance of the requirement referred to in paragraph (1).

-47 Annual reports. The director shall submit an annual report to the governor and legislature that includes an analysis of de-identified aggregated data collected by the director under this chapter.

PART V. PROTECTIONS FROM LIABILITY AND RELATION TO OTHER LAWS

-48 Protections afforded to physicians, advanced practice registered nurses, and pharmacies. No treating physician, second assessment physician, consulting physician, advanced practice registered nurse with prescriptive authority granted under section 457-8.6, or pharmacist in a dispensing pharmacy shall be subject to arrest or prosecution, penalized in any manner, or denied any right or privilege as a result of assisting a person who requests access to, or is accessing, voluntary assisted dying; provided that the physician or pharmacist has complied with the requirements of this chapter.

-49 No duty to rescue. (a) No physician licensed under chapter 453, a nurse licensed under chapter 457, or an emergency ambulance personnel certified under section 453-32 shall be subject to arrest or prosecution, penalized in any manner, or denied any right or privilege for failing to administer life saving or life sustaining medical treatment to a person dying after being administered or self-administering a voluntary assisted dying substance in accordance with this chapter.

(b) This section shall not be construed to prohibit a physician licensed under chapter 453, a nurse licensed under chapter 457, or an emergency ambulance personnel certified under section 453-32 from providing comfort measures to the person who requests access to or accesses voluntary assisted dying medical care.

-50 Advanced practice registered nurses. Nothing in this chapter shall be construed to limit the scope of practice of an advanced practice registered nurse with prescriptive authority granted under section 457-8.6.

-51 Insurance and annuities. Death resulting from voluntary assisted dying under this chapter shall not for any purpose constitute a suicide or homicide or legally impair or invalidate a policy of insurance or an annuity providing a death benefit, notwithstanding any term of the policy or annuity to the contrary.

PART VI. CRIMINAL OFFENSES

-52 Offense not to comply with physician administration permit. (a) It is unlawful for a treating physician to administer to a person who is the subject of a physician administration permit a voluntary assisted dying substance specified in that permit, if the treating physician:

(1) Intends to cause the person's death by administering the voluntary assisted dying substance; and

(2) Knowingly administers the voluntary assisted dying substance other than as authorized by, and in accordance with, that permit.

(b) A treating physician who violates this section is guilty of a class C felony.

-53 Offense not to comply with self-administration permit. (a) It is unlawful for any person other than the person who is the subject of a self-administration permit to knowingly administer to the person who is the subject of the self-administration permit the voluntary assisted dying substance.

(b) A person who violates this section is guilty of a class C felony.

-54 Offense to induce another person to request voluntary assisted dying. (a) It is unlawful for any person to induce another person to make a request for access to voluntary assisted dying.

(b) A person who violates this section is guilty of a misdemeanor.

(c) For the purposes of this section, the term "request for access" shall include:

(1) A preliminary request under section -3;

(2) A written declaration under section -9;

(3) A final request under section -12; or

(4) A final order for physician administration under section -41.

-55 Offense to induce self-administration of a voluntary assisted dying substance. (a) It is unlawful for any person to induce another person to self-administer a voluntary assisted dying substance dispensed in accordance with a self-administration permit.

(b) A person who violates this section is guilty of a misdemeanor.

-56 Offense to falsify form or record. (a) It is unlawful for any person to falsify a form or record required to be made under this chapter.

(b) A person who violates this section is guilty of a misdemeanor.

(c) For the purposes of this section, the term "form or record" includes:

(1) A first assessment report form as referenced under section -5(e)(2);

(2) A second assessment report form as referenced under section -7(e)(2);

(3) A written declaration under section -9;

(4) A contact person appointment form as referenced under section -15(a)(1);

(5) A final review form as referenced under section    ‑16(a)(2);

(6) A voluntary assisted dying substance dispensing form as referenced under section -37(a);

(7) A voluntary assisted dying substance disposal form as referenced under section -40(a); or

(8) A physician administration form as referenced under section -42(b).

-57 Offense to make a false statement. (a) It is unlawful to any person to knowingly make a false or misleading statement in a report or form with respect to another person who requests access to voluntary assisted dying.

(b) A person who violates this section is guilty of a misdemeanor.

(c) For the purposes of this section, the term "report or form" means:

(1) The items listed in section -56(c);

(2) An application for a self-administration permit under section -23;

(3) An application for a physician administration permit under section -24;

(4) A statement made under section -23(b)(6); or

(5) A statement made under section -24(b)(6).

-58 Offense for contact person to fail to return unused or remaining voluntary assisted dying substance. (a) It is unlawful for any person who serves as a contact person for a person who is the subject of a self-administration permit to fail, within fifteen days after the date of death of the person, to return to the dispensing pharmacy any unused or remaining voluntary assisted dying substance.

(b) A contact person who violates this section is guilty of a petty misdemeanor.

-59 Offense to fail to give copies of forms to the director. (a) It is unlawful for any person who is required pursuant to this chapter to provide a copy of a form to the director to fail to do so.

(b) A person who violates this section is guilty of a violation.

(c) For the purposes of this section:

"Form" includes:

(1) A first assessment report form as referenced under section -5(e)(2);

(2) A second assessment report form as referenced under section -7(e)(2);

(3) A final review form as referenced under section    ‑16(a)(2);

(4) A voluntary assisted dying substance dispensing form as referenced under section -37(a);

(5) A voluntary assisted dying substance disposal form as referenced under section -40(a); or

(6) A physician administration form as referenced under section -42(b).

"Violation" has the meaning given under section 701‑107(5)."

SECTION 2. Section 327E-13, Hawaii Revised Statutes, is amended to read as follows:

"327E-13 Effect of this chapter. (a) This chapter shall not create a presumption concerning the intention of an individual who has not made or who has revoked an advance health-care directive.

(b) Death resulting from the withholding or withdrawal of health care in accordance with this chapter shall not for any purpose constitute a suicide or homicide or legally impair or invalidate a policy of insurance or an annuity providing a death benefit, notwithstanding any term of the policy or annuity to the contrary.

(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.

(d) This chapter shall not authorize or require a health-care provider or institution to provide health care contrary to generally accepted health-care standards applicable to the health-care provider or institution.

(e) This chapter shall not authorize an agent or surrogate to consent to the admission of an individual to a psychiatric facility as defined in chapter 334, unless the individual's written advance health-care directive expressly so provides.

(f) This chapter shall not affect other statutes of this State governing treatment for mental illness of an individual involuntarily committed to a psychiatric facility.

(g) In case of a conflict between this chapter and chapter    regarding voluntary assisted dying, the latter chapter shall prevail."

SECTION 3. Section 327H-2, Hawaii Revised Statutes, is amended to read as follows:

"327H-2 Bill of rights. (a) The pain patient's bill of rights includes the following:

(1) A patient who suffers from severe acute pain or severe chronic pain has the option to request or reject the use of any or all modalities to relieve the pain;

(2) A patient who suffers from severe acute pain or severe chronic pain has the option to choose from appropriate pharmacologic treatment options to relieve severe acute pain or severe chronic pain, including opiate medications, without first having to submit to an invasive medical procedure.

For purposes of this paragraph, "invasive medical procedure" means surgery, destruction of a nerve or other body tissue by manipulation, or the implantation of a drug delivery system or device;

(3) A patient's physician may refuse to prescribe opiate medication for a patient who requests a treatment for severe acute pain or severe chronic pain. However, that physician may inform the patient of physicians who are qualified to treat severe acute pain and severe chronic pain employing methods that include the use of opiates;

(4) A physician who uses opiate therapy to relieve severe acute pain or severe chronic pain may prescribe a dosage deemed medically necessary to relieve the pain;

(5) A patient may voluntarily request that the patient's physician provide an identifying notice of the prescription for purposes of emergency treatment or law enforcement identification; [and]

(6) With regard to pain patients, the application of this section shall be guided by the medical principle that physical tolerance and dependence are normal consequences of sustained use of opiate medication, distinguishable from psychological dependency or addiction that bears no relationship to pain experienced by a patient. For the purposes of this section, psychological dependency shall be characterized by a patient's compulsion to take a drug notwithstanding the fact that the patient knows the harmful and destructive effect of the drug on the patient. The distinction is one of treatment of pain as opposed to feeding a psychological need. A patient who suffers severe acute pain or severe chronic pain secondary to a diagnosis in any form of disease and chronic conditions may be entitled to receive a prescription of opiate medication for the treatment of the pain, if requested by that patient; provided that:

(A) The particular opiate is appropriate to the treatment of that pain; and

(B) The patient is not addicted to the opiate. For the purposes of this subparagraph, the term "addicted" refers to a psychological dependence, rather than a progressive physical tolerance for the opiate to relieve the pain; provided that the term does not include a narcotic-dependent person as defined in section 329-40[.]; and

(7) A patient who meets eligibility criteria may request and access voluntary assisted dying under chapter    .

(b) Nothing in this section shall be construed to:

(1) Expand the authorized scope of practice of any licensed physician;

(2) Limit any reporting or disciplinary provisions applicable to licensed physicians and surgeons who violate prescribing practices; and

(3) Prohibit the discipline or prosecution of a licensed physician for:

(A) Failing to maintain complete, accurate, and current records that document the physical examination and medical history of a patient, the basis for the clinical diagnosis of a patient, and the treatment plan for a patient;

(B) Writing false or fictitious prescriptions for controlled substances scheduled in the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 United States Code 801 et seq. or in chapter 329;

(C) Prescribing, administering, or dispensing pharmaceuticals in violation of the provisions of the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 United States Code 801 et seq. or of chapter 329; and

(D) Diverting medications prescribed for a patient to the licensed physician's own personal use[; and

(E) Causing, or assisting in causing, the suicide, euthanasia, or mercy killing of any individual; provided that it is not "causing, or assisting in causing, the suicide, euthanasia, or mercy killing of any individual" to prescribe, dispense, or administer medical treatment for the purpose of treating severe acute pain or severe chronic pain, even if the medical treatment may increase the risk of death, so long as the medical treatment is not also furnished for the purpose of causing, or the purpose of assisting in causing, death for any reason]."

SECTION 4. Section 329-41, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) It is unlawful for any person:

(1) Who is subject to part III to distribute, administer, prescribe, or dispense a controlled substance in violation of chapter , section 329-38, or rules authorized under section 329-31; however, a licensed manufacturer or wholesaler may sell or dispense a controlled substance to a master of a transpacific ship or a person in charge of a transpacific aircraft upon which no physician is regularly employed, for the actual medical needs of persons on board such ship or aircraft when not in port; provided schedule I or II controlled substances shall be sold to the master of such ship or person in charge of such aircraft only in accordance with the provisions set forth in 21 Code of Federal Regulations, sections 1301, 1305, and 1307, adopted pursuant to Title 21, United States Code, section 821;

(2) Who is a registrant to manufacture a controlled substance not authorized by the registrant's registration or to distribute or dispense a controlled substance not authorized by the registrant's registration to another registrant or another authorized person;

(3) To refuse or fail to make available, keep, or furnish any record, notification, order form, prescription, statement, invoice, or information in patient charts relating to the administration, dispensing, or prescribing of controlled substances;

(4) To refuse any lawful entry into any premises for any inspection authorized by this chapter;

(5) Knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place for the purpose of using these substances or which is used for keeping or selling them in violation of this chapter or chapter 712, part IV;

(6) Who is a practitioner or pharmacist to dispense a controlled substance to any individual not known to the practitioner or pharmacist, except under the following circumstances:

(A) When dispensing a controlled substance directly to an individual, the practitioner or pharmacist shall first obtain and document, in a log book or an electronic database, the full name, identification number, identification type, and signature, whether by actual signature or by electronic signature capture device, of the individual obtaining the controlled substance. If the individual does not have any form of proper identification, the pharmacist shall verify the validity of the prescription and identity of the patient with the prescriber, or their authorized agent, before dispensing the controlled substance; and

(B) For mail order prescriptions, the practitioner or pharmacist shall not be subject to subparagraph (A); provided that all other requirements of chapter 329 shall apply and that the practitioner or pharmacist, as part of the initial registration process of an individual in a mail order prescription drug plan and prior to the controlled substance being dispensed, shall obtain all identification information, including the full name, identification number, identification type, signature, and a photocopy of a form of proper identification of the individual obtaining the controlled substance. The practitioner or pharmacist shall also comply with other requirements set forth by rule.

For the purpose of this section, "proper identification" means government-issued identification containing the photograph, printed name, identification number, and signature of the individual obtaining the controlled substance;

(7) Who is a practitioner to predate or pre-sign prescriptions to facilitate the obtaining or attempted obtaining of controlled substances; or

(8) Who is a practitioner to facilitate the issuance or distribution of a written prescription or to issue an oral prescription for a controlled substance when not physically in the State."

SECTION 5. 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 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 sole or exclusive result of suicide, while sane or insane."

SECTION 6. Section 703-308, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) The use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary to prevent the other person from committing suicide, inflicting serious bodily harm upon oneself, committing or consummating the commission of a crime involving or threatening bodily injury, damage to or loss of property, or breach of the peace, except that:

(a) Any limitations imposed by the other provisions of this chapter on the justifiable use of force in self-protection, for the protection of others, the protection of property, the effectuation of an arrest, or the prevention of an escape from custody shall apply notwithstanding the criminality of the conduct against which such force is used; [and]

(b) The use of deadly force is not in any event justifiable under this section unless:

(i) The actor believes that there is a substantial risk that the person whom the actor seeks to prevent from committing a crime will cause death or serious bodily injury to another unless the commission or the consummation of the crime is prevented and that the use of such force presents no substantial risk of injury to innocent persons; or

(ii) The actor believes that the use of such force is necessary to suppress a riot after the rioters have been ordered to disperse and warned, in any particular manner that the law may require, that deadly force will be used if they do not obey[.]; and

(c) This section shall not apply to voluntary assisted dying under chapter ."

SECTION 7. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect on July 1, 2019.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Voluntary Assisted Dying; Rights; Established

 

Description:

Establishes the right of certain terminally ill adults to request and access the process of voluntary assisted dying through self-administration or physician administration of a voluntary assisted dying substance. Effective 7/1/2019.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.