Hawaii 2017 SB 357 Analysis

“Hawaii Patient Choice at End of Life Act of 2017” (S.B. 357) Analysis

Unlike previous laws or proposals to permit assisted suicide, SB 357 represents the next stage in assisted-suicide advocates’ plans to normalize deaths by lethal prescription within medical practice.[1]  SB 357 dispenses with second opinions, waiting periods, multiple requests, reporting requirements and other elements which assisted-suicide advocates had formerly described as necessary safeguards.[2]  It is intended to make assisted suicide subject only to “best practices” ˗˗ actions to be judged in accordance with the “standard of care” criteria.[3]

If SB 357 is passed:

Doctor-prescribed suicide, which is currently a crime,[4] would be transformed into a medical treatment, called “Medical Aid in Dying.”[5]

 This would give insurance programs the opportunity to cut costs by denying payment of more expensive treatments while approving payment for the less costly lethal drug overdose prescription.  If the bill is approved, will health insurance programs do the right thing – or the cheap thing?

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 doctor-prescribed suicide would be covered.[6]

A doctor could prescribe the deadly drugs for the suicide of a “qualified patient” on the same day that the patient is diagnosed as being “terminally ill.”

There is no waiting period between the time that the patient is diagnosed and the time that the prescription is written. An attending physician could give a patient the terminal diagnosis, deem the patient eligible for assisted suicide, inform the patient of the availability of assisted suicide and write the prescription for the lethal drugs on the same day – without the patient ever recovering from the initial shock of being informed of the terminal diagnosis.

“Terminally ill” is so broadly defined that a very frail individual or a severely disabled individual could be given a lethal prescription.

Unlike other laws and proposals, “terminally ill” is defined as “the final stage of an incurable or irreversible medical condition that has been medically confirmed and will, within reasonable medical judgment, result in death within six months.”[7]  There is no requirement that the patient have a terminal disease or illness – only that the condition is incurable or irreversible.  Furthermore, there is no reference to the fact that the six months’ prognosis be with or without medical treatment.

Individuals with controllable medical conditions would be eligible for doctor-prescribed suicide under SB 357. This could include a person with a spinal cord injury following an accident since the condition may be incurable and irreversible but, with intervention, would permit the person to live for many years.  Individuals with insulin-dependent diabetes and certain types of leukemia would also be considered terminally ill under this bill.

There is documentation that this has occurred under Oregon’s assisted-suicide law.  In an official report from the Oregon Public Health Division, diabetes is noted as the underlying terminal condition that made the patient eligible for doctor-prescribed suicide.[8]

There is no requirement for a second opinion to confirm the patient’s diagnosis or eligibility for doctor-prescribed suicide.

All actions are carried out by a single attending physician. Those actions include diagnosing the patient, informing the patient about the availability of “medical aid in dying,” assessing the patient’s capacity, and prescribing the lethal drugs.

The attending physician could be an individual whose specialty is the provision of “medical aid in dying.”

“Attending physician” is defined as one who is authorized to practice medicine, has the primary responsibility for the patient’s health care and treatment and who routinely provides medical care to patients with advanced and terminal illness.

It also states that the physician’s practice may not be solely limited to providing medical aid in dying.[9]   However, providing medical aid in dying could be the main focus of the physician’s practice.

This opens the door for a physician to specialize in doctor-prescribed suicide.  Such a specialty is already taking place in California where, soon after that state’s “End of Life Option Act” passed, Dr. Lonny Shavelson, a Bay Area physician, opened a right-to-die practice.  Shavelson’s medical expertise had been primarily as an emergency room physician prior to his leaving medical practice to become a photo-journalist.   His new business is called “Bay Area End of Life Options,” where he charges $200 for an initial patient evaluation and, for patients he considers qualified, the clinic will charge an additional $1,800 for expenses related to follow up, etc.[10]  In the six months following the opening of his clinic, Shavelson supervised 22 deaths.[11]

Hawaii could easily become a national suicide destination. 

Nothing in the proposed law requires that an individual be a resident of Hawaii to qualify for doctor-prescribed suicide in the state.

Patients’ lives could be ended by lethal injection.

The bill merely states that the patient’s death must occur as a result of a “terminally ill adult’s affirmative, conscious, and physical act of administering the aid in dying drug to bring about his or her own death.”[12]  The act of self-administration could be by lethal injection or by orally ingesting the drugs.

Since there are no requirements for witnesses to the death, someone else could administer the lethal injection and no one would ever know.

A request for the drug overdose requires no specific procedure.

The request would be no more stringent than a patient’s request for a flu shot.  It would be governed only by the “standard of care.”[13]

The bill requires that death certificates be falsified.

Although the manner of death resulting from an intentional overdose of drugs is suicide and the cause of death is a deadly drug overdose, the bill states that the cause of death listed on the death certificate is to be the individual’s underlying terminal illness.[14]

An attending physician could prescribe drugs for suicide to a patient who is mentally ill or depressed.

The doctor can prescribe the lethal overdose as long as the patient has “capacity,” meaning that one understands what such a prescription would entail and is able to communicate an informed healthcare decision to request the drugs.[15]  No counseling or psychological evaluation is required.  The determination of the patient’s capacity to make an informed health care decision shall be made solely by the patient’s attending physician.[16]  Many mentally ill or depressed individuals are very capable of understanding and appreciating the nature of their decisions.

The bill contains no provision for health care facilities to opt out of permitting doctor-prescribed suicide.

There are immunities[17] for individual health care providers or organizations related to participating or declining to participate in doctor-prescribed suicide but no similar immunities for health care facilities, including hospitals, hospices, nursing homes, etc.

The rationale for the bill is based on inaccurate information.

The bill states that “data from Oregon also demonstrates that there have been no abuses of the law.”[18]  However, the sheer amount of unknown data in Oregon’s official reports renders such a claim implausible.

The 2015 official Oregon report[19] shows that, when the patient ingested the lethal drugs, it was unknown if anyone else was present in 74% of all reported prescribed-suicide deaths. This means that the Oregon Public Health Division (OHPD) has no clue if the patient took the deadly dose voluntarily or if it was disguised in food and unwittingly consumed by the patient, or if the patient was forced to take the drugs.

In the 2015 statistics for lethal drug complications after ingestion, the OHPD reported that, for 80% of cases, it is unknown whether complications occurred or not.  It should also be noted that 40% to 89% of data is missing from report categories that are directly related to patient safety and abuse.

How can the claim that Oregon’s assisted-suicide experience is problem-free and abuse-free be credible when so much of what is actually occurring is officially “unknown”?

[1]  See, for example, Kathryn L. Tucker, “End of Life Liberty in DC,” Jurist, December 15, 2016.  Available at: http://www.jurist.org/hotline/2016/12/end-of-life-liberty-in-dc.php. (Last accessed January 24, 2017.) Tucker was the legal director of Compassion and Choices (formerly the Hemlock Society) and now serves as Executive Director of the End of Life Liberty Project (ELLP) which she founded.

Tucker, who has been a leading promoter of Oregon-style assisted suicide bills now claims that the “safeguards” included in the Oregon law and similar laws and proposals are “burdens and restrictions” that impose heavy governmental intrusion into the practice of medicine.  She states that future enactments of such laws should be left to standard of care and best practices.

[2]  Such previous laws and proposals have been based on Oregon’s “Death with Dignity Act.”  Available at:  http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ors.aspx. (Last accessed January 28, 2017.)

[3]  “Standard of care” is the level at which the average, prudent provider in a given community would practice. It is how similarly qualified practitioners would have managed the patient’s care under the same or similar circumstances.

[4]  Haw. Rev. Stat. § 707-702 (1) (b).

[5]  SB 357 Section 3, §1 Definition of “Medical aid in dying.”  “‘Medical aid in dying’ means the medical practice of an attending physician prescribing medication to a terminally ill patient with the capacity to make an informed health care decision to self-administer the medication to bring about a peaceful death if they so choose.”

[6]  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 January 27, 2017.)
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 January 28, 2017.)

[7]  SB 357 Section 3, §1 Definition of “Terminally ill.” (Emphasis added.)

[8]  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 January 28, 2017.)

[9]  SB 357 Section 3, §1 Definition of “Attending physician.” (Emphasis added.)

[10] Tracy Seipel, “Bay Area physician opens right-to-die practice,” San Jose Mercury News, June 7, 2016.

[11] Jonel Aleccia, “Legalizing Aid in Dying Doesn’t Mean Patients Have Access to It,” NPR, January 25, 2017.  Available at:  http://www.npr.org/sections/health-shots/2017/01/25/511456109/legalizing-aid-in-dying-doesnt-mean-patients-have-access-to-it. (Last accessed January 28, 2017.)

[12]  SB 357 Section 3, §1 Definition of “Self-administration” and Section 3 §2 “Medical Aid in Dying;  Authorized.”

[13]  SB 357 Section 3, §3.
Standard  of care is the level at which the average, prudent provider in a given community would practice.  It is how similarly qualified practitioners would have managed the patient’s care under the same or similar circumstances.

[14]  SB 357 Section 3, §4 (c) and (e).  This contradicts the generally accepted standard used to determine the cause and manner of death.
Determining a suicide:

  • There is evidence that death was self-inflicted. Pathological (autopsy), toxicological, investigatory, and psychological evidence, and statements of the decedent or witnesses, may be used for this determination.
  • There is evidence (explicit and/or implicit) that at the time of injury the decedent intended to kill self or wished to die and that the decedent understood the probable consequences of his or her actions.
  • Explicit verbal or nonverbal expression of intent to kill self.
  • Implicit or indirect evidence of intent to die.
    Source: CDC, Medical Examiner’s and Coroner’s Handbook on Death Registration, 2003, pp. 21 & 22.
    Definition of suicide:
  • Merriam-Webster: “The act or an instance of taking one’s own life voluntarily and intentionally especially by a person of years of discretion and of sound mind.”
  • Oxford Dictionary: “The action of killing oneself intentionally.”
  • com: “The intentional taking of one’s own life.”

[15]  SB 357 Section 3, §1 Definition of “Capacity.”

[16]  SB 357 Section 3, §2 Medical aid in dying; authorized.

[17]  SB 357 Section 3, §5.

[18]  SB 357 Section 2.

[19] Official report for 2015 deaths under Oregon’s Death with Dignity Act, Oregon Public Health Division, “Oregon’s Death with Dignity Act – 2015.” Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf. (Last accessed January 27, 2017.)

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