LEGISLATIVE UPDATE: NEW DEATH WITH DIGNITY LAW PASSED

Legislative Update: New Death With Dignity Law Passed

By

Ethan R. Okura

 

Recently, the Hawaii State Legislature passed a bill that gives terminally ill patients an option to take prescription medication that will cause them to pass away peacefully in their sleep. This was known as House Bill 2739, the Our Choice, Our Care Act, which was signed into law by Governor Ige on April 5th, 2018.

This is still a controversial topic in many states as, historically, suicide was illegal under English Common Law, and many States originally categorized the act of suicide as a felony crime. Over the years, more and more States decriminalized the act of suicide. After all, how can you punish someone for successfully breaking that law?

Nevertheless, most states still make it a crime to assist someone with taking their own life, by providing them with the means to accomplish it, or by participating in a physical act by which another person commits suicide. Sometimes, it’s a criminal act just to incite, or solicit—merely encouraging is enough to be guilty of the crime.

The State of Oregon became the first state in the United States to pass the Death With Dignity Act in 1994, making it legal for a mentally-competent, terminally-ill adult, with a prognosis of 6 months or less to live, to receive prescription medication allowing the patient to peacefully pass away. Despite this, there was a lot of opposition including a federal court injunction, and the US Attorney General, John Ashcroft, declaring it to be in violation of the Controlled Substances Act.

Dr. Jack Kevorkian, perhaps the one most famous for bringing this issue to national attention, helped at least 130 patients to end their lives even though it had not yet been legalized. He saw it as a humane way to let people have choice and control over how to end their own lives when nature was not giving them the choice to continue to live. It was at the height of Dr. Kevorkian’s fame, national media attention, and prosecution resulting in jail time, when Oregon passed this new law.

It wasn’t until 14 years later, in 2008, that the State of Washington, became the second state to pass the Death with Dignity Act. Prior to Hawaii passing the Our Choice, Our Care Act, Oregon, Washington, California, Vermont, Colorado, and the District of Columbia have all passed legislation to allow this type of choice. The Supreme Court of the State of Montana has ruled to allow it judicially without legislation. This makes Hawaii the 7th jurisdiction in the United States to allow terminal patients to hasten their own death under certain circumstances. This new law takes effect on January 1, 2019.

There are safeguards in place to prevent the use of this option in the case of abuse, coercion, and depression. The requirements are as follows:

  • The patient must be an adult over the age of 18, mentally capable, and a resident of the State of Hawaii;
  • The patient may request a prescription for medication to end the patient’s life; twice orally at least twenty days apart, and once in writing;
  • The 3 requests above must be made directly to the patient’s attending physician by the patient and not by an agent on behalf of the patient;
  • The written request must be signed by two witnesses, at least one of which must be someone who is not a relative, not going to inherit anything on account of the death, and not an employee, owner, or operator of a health care facility where the patient is residing or receiving treatment; and the attending physician is also not allowed to be a witness;
  • Before prescribing the medication, the physician must refer the patient for counseling to a psychiatrist, psychologist, or clinical social worker to verify that the patient is capable and not suffering from depression without adequate treatment;
  • The patient must be provided the opportunity to change his or her mind and informed of such rights; after which, if the patient wishes to continue, the patient may administer the prescribed medication to himself or herself;
  • Finally, it’s a Class A felony for anyone else to make or alter a request for the prescription on behalf of the patient; or to hide or destroy documentation that the patient wishes to rescind the request; or to coerce or induce a patient to request the prescription by fraud, threat, or intimidation.

There are a few other details in this 40-page bill, but this article covers the gist of what was passed into law by the legislature. The nice thing about this law is that it allows those who are suffering to have another option should they want it. It can be heartbreaking to listen to a loved-one suffer, while she knows that it will soon end painfully anyway, and she feels powerless to do anything about it.  I believe that giving people control over their health care and their destinies—even in choosing to end their own life—is the humane thing to do.

© OKURA & ASSOCIATES, 2018

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