Hawaii 2017 Amended SB 1129 Analysis

2017 Hawaii Amended S. B. 1129
“Medical Aid in Dying Act”Analysis

Patterned on Oregon’s doctor-prescribed suicide law, this bill would transform Hawaii’s crime of assisted suicide[1] into a medical treatment. It greatly expands the Oregon bill and, as amended on February 15, 2017, would permit certain nurses, as well as doctors, to prescribe drugs for suicide. 

Under the bill:

Non-physicians could diagnose a patient and prescribe drugs to cause that patient’s death.

The bill permits an “attending provider,”[2] which includes not only a physician but also an advanced practice registered nurse, to diagnose a patient’s terminal disease.  It also authorizes an attending provider to prescribe the lethal drugs for assisted suicide.

A doctor or nurse would be able to prescribe a massive overdose of drugs for a person to take to end his or her life.

The bill refers to a “qualified patient”[3] as a capable adult resident who has satisfied certain requirements and who has “voluntarily expressed a wish to die.”[4]   Many individuals erroneously assume that the prescription permitted under the bill would be for “a pill” that the patient would take to slip peacefully away.  However, this is definitely not true.

According to a recent official report from Oregon, 97.5% of prescriptions since that state’s “death with dignity” law went into effect were for either of two barbiturates (sedatives): secobarbital or pentobarbital.[5]

Currently, pentobarbital is difficult to obtain due to growing opposition to its use in capital punishment.  This has led to increased use of the more expensive secobarbital for assisted suicide.[6]

The therapeutic dosage of secobarbital is 1 to 3 capsules.  The usual lethal dose prescribed for assisted suicide is 90 to 100 capsules![7]   This is not taking “a pill.”

An individual with a controllable medical condition could be considered to have a terminal disease, making him or her eligible for prescribed suicide.

To be eligible for a suicide prescription, a patient is considered to have a terminal disease if the condition is “an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.”[8]

There are many conditions (diabetes, certain types of leukemia, disabilities requiring ventilator support, etc.) that, without medical treatment, would result in death within six months.  However, with medical treatment, individuals with those conditions could live for many years.  Yet those individuals would be eligible for prescribed suicide.

An insulin-dependent diabetic patient who stops taking insulin will, within reasonable medical judgment, die within six months.  Thus, under the bill, diabetics could be eligible for prescribed suicide even though they could live virtually normal lives with insulin.

There is documentation that this has occurred under Oregon’s assisted-suicide law.  In a recent official report from Oregon, diabetes is noted as the underlying terminal condition that made the patient eligible for a lethal prescription.[9]

Why is the definition of “terminal disease” so broad? 

Government bureaucrats and profit-driven health insurance programs could cut costs by denying payment for treatment that patients need and want, while approving payment for less costly assisted suicide deaths. 

There is documented information about terminally ill patients in Oregon and California who were denied coverage for treatment by insurance providers and, instead, were told that assisted suicide would be covered.[10]

Referring to payment for assisted suicide, the Oregon Department of Human Services explains, “Individual insurers determine whether the procedure is covered under their policies, just as they do any other medical procedure.”[11]

If the Hawaii bill is approved, will private insurance programs and government health programs do the right thing – or the cheap thing? 

A health care facility could not prevent deaths from prescribed suicide on its premises.  Furthermore, a facility willing to permit assisted-suicide deaths could require some nurses, pharmacists and certain other individuals to facilitate such deaths.

The bill states that “a health care provider may prohibit another health care provider from participating in actions covered by this chapter on the premises” if certain notification is provided.[12]

It also states that “no health care provider may be under any duty, whether by contract, by statute or by any other legal requirement, to participate in the provision to a qualified patient of medication to end the qualified patient’s life in a humane and dignified manner.”[13]

However, the phrase “participate in actions covered by this chapter” is very narrowly defined in the bill.[14]  It refers only to performing the duties of the attending provider, the consulting provider or one who carries out the counseling, if performed.  It does not include certain nurses, pharmacists and other individuals.

Therefore, facilities permitting prescribed suicide could require pharmacists to dispense the lethal drugs and non-attending providers to bring the drugs to a patient since such activities would not constitute “participation” as defined in the proposal.

Likewise, facilities would not be able to ban others from bringing a lethal drug prescription to a patient or resident to self-administer on the premises.  Facilities would not be able to prevent the witnessing of the written requests for prescribed suicide; would not be able to prohibit a pharmacy on the premises from dispensing the drugs; and would not be able to prevent nurses or others from bringing them to a patient or resident.

The written request for prescribed suicide could be witnessed by someone who would gain financially from the patient’s death.

The written request, which could be signed in the patient’s residence, must be witnessed by two individuals, only one of whom may not be someone who would be entitled to any portion of the patient’s estate.[15]  Thus, one witness may be a potential heir who is pressuring the patient to sign the request.  The second witness could be the “best friend” of the potential heir.

This places victims of elder abuse and domestic abuse in great danger since they are unlikely to share their fears with outsiders or to reveal that they are being pressured by family members to “choose” assisted suicide.

The bill permits a person who would benefit financially from the person’s death to pick up and deliver the lethal prescription.

The drugs can be dispensed to “an expressly identified agent of the patient.”[16]  A potential heir could encourage the patient to authorize him or her to pick up the drugs for delivery to the patient’s residence.

Severely depressed or mentally ill patients could receive a prescription for suicide, without having any form of counseling.

Counseling is only required “as necessary.”[17]

Even if the patient is severely depressed or has a mental illness, an attending provider does not need to refer the patient for counseling unless the attending provider believes the patient has “impaired judgment,” that prevents the patient from making an informed decision.[18]  If the depressed or mentally ill patient understands and acknowledges the relevant facts related to the request for prescribed suicide, he or she is considered able to make an informed decision and would not be referred for counseling.

A patient could be led to request assisted suicide based on fear of being a burden to others.   

Many families are under tremendous strain.  At a time of rising health care costs, home foreclosures and general economic uncertainty, it would be foolhardy to ignore the role that finances would play when making life and death decisions.

Would some patients feel that they should request prescribed suicide so that they wouldn’t be a financial or emotional burden on their family?

Even in families where there would be emotional and practical support for a patient diagnosed with a terminal illness, patients could feel that they are being selfish for not sparing their family.  This has been documented in Oregon as a reason for requesting the prescription for death.

According to Oregon’s eighteenth official report, 48 percent of patients who died using that state’s assisted suicide law did so to avoid being a burden on their family, friends or caregivers.[19]

While we would all like to believe that family means warmth, love and protection, we need to face the reality that dysfunctional families are not rare and elder abuse – much of it at the hands of a family member – is a fact of life.

The most marginalized individuals – poor, hardworking people – would be in particular danger.

“Choice” is an appealing word but inequity in health care is a harsh reality.

Under the bill, before writing a prescription for death, an attending provider must discuss “any feasible alternatives and health care treatment options, including palliative care and hospice.”[20]  However, discussing all options does not mean the patient will have the ability to access those options.

Patients who have insurance may find that it does not cover the “feasible alternatives.”

Prescribed suicide may well become a “choice” for the comfortably well off, but the only “medical treatment” the poor can afford.  The last to receive health care could be the first to receive prescribed suicide.

Family members or health care providers and others could advise, suggest, encourage or exert subtle and not so subtle pressure on patients to request prescribed suicide, setting the stage for elder abuse and pressure on vulnerable patients.

The bill would penalize anyone who “coerces or exerts undue influence”[21] on a patient to request the lethal prescription.  However, those words have a very narrow legal meaning.  The proposal does not prohibit someone from suggesting, advising, pressuring or encouraging a patient to request prescribed suicide.

Since victims of domestic abuse, including elder abuse, are extremely vulnerable to persuasion from their abusers, it takes little imagination to understand how abused patients could be persuaded to request prescribed suicide.

Death certificates of individuals dying from prescribed suicide would be falsified.

Deaths occurring from the lethal dose of drugs would not reflect that a drug overdose was the cause of death.  According to the bill, “the attending provider may sign the patient’s death certificate, which shall list the underlying terminal disease as the cause of death.[22]

All of the “safeguards” in the bill cease the moment the prescription is received.

The bill contains ten references to “voluntarily,” “voluntariness,” “voluntary,” but all of those references are to actions before the prescription is filled.  Nothing in the bill states that the drugs, once prescribed, must be knowingly or voluntarily taken.

A person could be tricked, or even forced, into taking the drugs and no one would ever know.

Why are there no safeguards at the most important part of the process – at the time the patient takes the drugs that cause death?
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[1]  Haw. Rev. Stat., § 707-702 (1) (b).

[2]  S.B. 1129, § – 1. Definition of “attending provider.”

[3]  S.B. 1129, § – 1. Definition of “qualified patient.”

[4]  S.B. 1129, § – 2.

[5]  Oregon Public Health Division: Death with Dignity Act – Year 18, p. 7.  Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf.  (Last accessed 1/30/17.)

[6]  Kimberly Leonard, “Drug Used in ‘Death with Dignity’ Is the Same Used in Executions,” US News and World Report,  October 16, 2015.  Available at: http://www.usnews.com/news/articles/2015/10/16/drug-shortage-creates-hurdle-for-death-with-dignity-movement. (Last accessed 2/2/17.)

[7]  Jennifer Fass and Andrea Fass, “Physician-assisted Suicide: Ongoing Challenges for Pharmacists,” Am. J. Health Syst. Pharm. 2011:68(9): 846-849.  Available at: http://www.medscape.com/viewarticle/742070_print.  (Last accessed 1/31/17.)   For more information on drugs used for doctor-prescribed suicide, see: http://www.patientsrightscouncil.org/site/doctor-prescribed-suicide-drugs. (Last accessed 2/1/17.)

[8]  S.B. 1129, § – 1.  (Definition of “terminal disease.”)

[9]  Official report for 2015 deaths under Oregon’s Death with Dignity Act, Oregon Public Health Division, “Oregon’s Death with Dignity Act – 2015,” pg. 7, fn. 2.  Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf. (Last accessed 2/1/17.)

[10]  See, for example:  Bradford Richardson, “Assisted-suicide law prompts insurance company to deny coverage to terminally ill California woman,” Washington Times, October 20, 2016.  Available at: http://www.washingtontimes.com/news/2016/oct/20/assisted-suicide-law-prompts-insurance-company-den. (Last accessed 1/27/17.)
Also see: Susan Donaldson James, “Death Drugs Cause Uproar in Oregon,” ABC News, August 6, 2008.  Available at:  http://abcnews.go.com/Health/story?id=5517492&page=1. (Last accessed 1/28/17.)

[11]  Oregon Dept. of Human Services, “FAQs about the Death with Dignity Act.”  Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/faqs.pdf. (Last accessed 2/1/17.)

[12] S.B. 1129, § – 18 (b). (Emphasis added.)

[13] S.B. 1129, § – 18 (a) (4).

[14] S.B. 1129, § – 18 (e). (Definition of “participate in actions covered by this chapter.”)

[15] S.B. 1129, § – 3 (b) (2).

[16] S.B. 1129, § – 4 (a) (12) (B) (ii).

[17] S.B. 1129, § – 1. (Definition of “counseling.”)

[18] S.B. 1129, § – 4 (5); S.B. 1129, § – 6; and S.B. 1129, § – 12 (5).

[19] Official report for 2015 deaths under Oregon’s Death with Dignity Act, Oregon Public Health Division, “Oregon Death with Dignity Act: 2015 Data Summary,”  p. 6.   Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf.  (Last accessed 2/7/17.)

[20]  S.B. 1129, § – 1 (Definition of “informed decision” (5).) and S.B. 1129, § – 4 (a) (3) (E).

[21]  S.B. 1129, § – 19 (b).

[22]  S.B. 1129, § – 4 (b). (Emphasis added.)
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