THE SENATE

S.B. NO.

1017

THIRTY-SECOND LEGISLATURE, 2023

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to health.

 

 

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

 


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

1. By adding two new definitions to be appropriately inserted and to read:

""Electronic prescription" has the same meaning as in section 329.1.

"Pharmacist" has the same meaning as in section 329.1."

2. By amending the definition of "health care" to read:

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

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

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

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

(4) Refusal of the administration of any opioid medication."

SECTION 2. Section 327E-9, Hawaii Revised Statutes, is amended to read as follows:

"[[]327E-9[]] Immunities. (a) A health-care provider or institution acting in good faith and in accordance with generally accepted health-care standards applicable to the health-care provider or institution shall not be subject to civil or criminal liability or to discipline for unprofessional conduct for:

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

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

(3) Complying with an advance health-care directive and assuming that the directive was valid when made and has not been revoked or terminated[.]; or

(4) Revoking or overriding, in good faith, a voluntary non-opioid directive in an emergency situation.

(b) An individual acting as agent, guardian, or surrogate under this chapter shall not be subject to civil or criminal liability or to discipline for unprofessional conduct for health-care decisions made in good faith.

(c) A prescription presented or electronically transmitted to a pharmacy shall be presumed valid for the purposes of this chapter and a pharmacist shall not be subject to civil or criminal liability or to discipline for unprofessional conduct for dispensing a controlled substance in contradiction of a patient's advance health-care directive that refuses the offer or administration of any opioid medication."

SECTION 3. Section 327E-16, Hawaii Revised Statutes, is amended to read as follows:

"327E-16 Optional form. The following sample form may be used to create an advance health-care directive. This form may be duplicated. This form may be modified to suit the needs of the person, or a completely different form may be used that contains the substance of the following form.

 

"ADVANCE HEALTH-CARE DIRECTIVE

 

Explanation

 

You have the right to give instructions about your own health care. You also have the right to name someone else to make health-care decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding the designation of your health-care provider. If you use this form, you may complete or modify all or any part of it. You are free to use a different form.

Part 1 of this form is a power of attorney for health care. Part 1 lets you name another individual as agent to make health-care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. You may name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. Unless related to you, your agent may not be an owner, operator, or employee of a health-care institution where you are receiving care.

Unless the form you sign limits the authority of your agent, your agent may make all health-care decisions for you. This form has a place for you to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health-care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right to:

(1) Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition;

(2) Select or discharge health-care providers and institutions;

(3) Approve or disapprove diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; and

(4) Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care.

Part 2 of this form lets you give specific instructions about any aspect of your health care. Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive, including the provision of artificial nutrition and hydration, as well as the provision of pain relief medication. Space is provided for you to add to the choices you have made or for you to write out any additional wishes.

Part 3 of this form lets you give specific instructions with regard to the donation of organs at death.

Part 4 of this form lets you designate a physician to have primary responsibility for your health care.

After completing this form, sign and date the form at the end and have the form witnessed by one of the two alternative methods listed below. Give a copy of the signed and completed form to your physician, to any other health-care providers you may have, to any health-care institution at which you are receiving care, and to any health-care agents you have named. You should talk to the person you have named as agent to make sure that he or she understands your wishes and is willing to take the responsibility.

You have the right to revoke this advance health-care directive or replace this form at any time.

 

PART 1

DURABLE POWER OF ATTORNEY FOR HEALTH-CARE DECISIONS

 

(1) DESIGNATION OF AGENT: I designate the following individual as my agent to make health-care decisions for me:

 

_______________________________________________

(name of individual you choose as agent)

 

_______________________________________________

(address) (city) (state) (zip code)

 

_______________________________________________

(home phone) (work phone)

 

OPTIONAL: If I revoke my agent's authority or if my agent is not willing, able, or reasonably available to make a health-care decision for me, I designate as my first alternate agent:

 

_______________________________________________

(name of individual you choose as first alternate agent)

 

_______________________________________________

(address) (city) (state) (zip code)

 

_______________________________________________

(home phone) (work phone)

 

OPTIONAL: If I revoke the authority of my agent and first alternate agent or if neither is willing, able, or reasonably available to make a health-care decision for me, I designate as my second alternate agent:

 

_______________________________________________

(name of individual you choose as second alternate agent)

 

_______________________________________________

(address) (city) (state) (zip code)

 

_______________________________________________

(home phone) (work phone)

 

(2) AGENT'S AUTHORITY: My agent is authorized to make all health-care decisions for me, including decisions to provide, withhold, or withdraw artificial nutrition and hydration, and all other forms of health care to keep me alive, except as I state here:

 

_______________________________________________

 

_______________________________________________

 

_______________________________________________

(Add additional sheets if needed.)

 

(3) WHEN AGENT'S AUTHORITY BECOMES EFFECTIVE: My agent's authority becomes effective when my primary physician determines that I am unable to make my own health-care decisions unless I mark the following box. If I mark this box [ ], my agent's authority to make health-care decisions for me takes effect immediately.

(4) AGENT'S OBLIGATION: My agent shall make health-care decisions for me in accordance with this power of attorney for health care, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health-care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.

(5) NOMINATION OF GUARDIAN: If a guardian needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able, or reasonably available to act as guardian, I nominate the alternate agents whom I have named, in the order designated.

 

PART 2

INSTRUCTIONS FOR HEALTH CARE

 

If you are satisfied to allow your agent to determine what is best for you in making end-of-life decisions, you need not fill out this part of the form. If you do fill out this part of the form, you may strike any wording you do not want.

(6) END-OF-LIFE DECISIONS: I direct that my health-care providers and others involved in my care provide, withhold, or withdraw treatment in accordance with the choice I have marked below: (Check only one box.)

[  ] (a) Choice Not To Prolong Life

I do not want my life to be prolonged if (i) I have an incurable and irreversible condition that will result in my death within a relatively short time, (ii) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (iii) the likely risks and burdens of treatment would outweigh the expected benefits, OR

[  ] (b) Choice To Prolong Life

I want my life to be prolonged as long as possible within the limits of generally accepted health-care standards.

(7) ARTIFICIAL NUTRITION AND HYDRATION: Artificial nutrition and hydration [must] shall be provided, withheld or withdrawn in accordance with the choice I have made in paragraph (6) unless I mark the following box. If I mark this box [   ], artificial nutrition and hydration [must] shall be provided regardless of my condition and regardless of the choice I have made in paragraph (6).

(8) RELIEF FROM PAIN: If I mark this box [   ], I direct that treatment to alleviate pain or discomfort should be provided to me even if it hastens my death.

(9) VOLUNTARY NON-OPIOID OPTION: If I mark this box [   ], I refuse at my own insistence the offer or administration of any opioid medications.

[(9)] (10) OTHER WISHES: (If you do not agree with any of the optional choices above and wish to write your own, or if you wish to add to the instructions you have given above, you may do so here.) I direct that:

 

_______________________________________________

 

_______________________________________________

(Add additional sheets if needed.)

 

PART 3

DONATION OF ORGANS AT DEATH

(OPTIONAL)

 

[(10)] (11) Upon my death: (mark applicable box)

[  ] (a) I give any needed organs, tissues, or parts,

OR

[  ] (b) I give the following organs, tissues, or parts only

__________________________________________

[  ] (c) My gift is for the following purposes (strike any of the following you do not want)

(i) Transplant

(ii) Therapy

(iii) Research

(iv) Education

 

PART 4

PRIMARY PHYSICIAN

(OPTIONAL)

 

[(11)] (12) I designate the following physician as my primary physician:

 

_______________________________________________

(name of physician)

 

_______________________________________________

(address) (city) (state) (zip code)

 

_______________________________________________

(phone)

 

OPTIONAL: If the physician I have designated above is not willing, able, or reasonably available to act as my primary physician, I designate the following physician as my primary physician:

 

_______________________________________________

(name of physician)

 

_______________________________________________

(address) (city) (state) (zip code)

 

_______________________________________________

(phone)

 

[(12)] (13) EFFECT OF COPY: A copy of this form has the same effect as the original.

[(13)] (14) SIGNATURES: Sign and date the form here:

 

________________________ __________________

(date) (sign your name)

 

________________________ __________________

(address) (print your name)

 

 

________________________

(city) (state)

 

[(14)] (15) WITNESSES: This power of attorney will not be valid for making health-care decisions unless it is either (a) signed by two qualified adult witnesses who are personally known to you and who are present when you sign or acknowledge your signature; or (b) acknowledged before a notary public in the State.

 

ALTERNATIVE NO. 1

 

Witness

I declare under penalty of false swearing pursuant to section 710-1062, Hawaii Revised Statutes, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud, or undue influence, that I am not the person appointed as agent by this document, and that I am not a health-care provider, nor an employee of a health-care provider or facility. I am not related to the principal by blood, marriage, or adoption, and to the best of my knowledge, I am not entitled to any part of the estate of the principal upon the death of the principal under a will now existing or by operation of law.

 

________________________ __________________

(date) (signature of witness)

 

________________________ __________________

(address) (printed name of witness)

 

________________________

(city) (state)

 

Witness

I declare under penalty of false swearing pursuant to section 710-1062, Hawaii Revised Statutes, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud, or undue influence, that I am not the person appointed as agent by this document, and that I am not a health-care provider, nor an employee of a health-care provider or facility.

 

________________________ __________________

(date) (signature of witness)

 

________________________ __________________

(address) (printed name of witness)

 

________________________

(city) (state)

 

ALTERNATIVE NO. 2

 

State of Hawaii

County of ________________

On this _____________ day of _______________, in the year _______, before me, __________________ (insert name of notary public) appeared _________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that he or she executed it.

 

 

Notary Seal

 

____________________________

(Signature of Notary Public)"

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.


 

SECTION 5. This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Advance Health-Care Directive; Voluntary Non-Opioid Option

 

Description:

Adds a voluntary non-opioid option to the sample advance health-care directive form. Establishes that a prescription presented or electronically transmitted to a pharmacy shall be presumed valid and grants pharmacists immunity from civil, criminal, and professional liability for dispensing an opioid in contravention of a patient's non-opioid directive.

 

 

 

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