Hawaii Patient Choice at End of Life Act of 2017 Analysis

From Patients Rights Council, January, 2017

This bill represents the next stage in assisted-suicide advocates’ plan to normalize doctor-prescribed suicide within the practice of medicine.[1]  It is the evolution of assisted suicide that is intended to make it subject only to medical “best practices.”  Actions of those who carry it out are only to be judged in accordance with the “standard of care” criteria.[2]

The bill eliminates “safeguards” from current doctor-prescribed suicide laws and proposals.

Provision of life-ending drugs (called “Medical Aid in Dying”) would become a “medical treatment.”

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

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.

There is no waiting period between the time that the patient is diagnosed and the time that the prescription is written.

A physician can give a patient the terminal diagnosis, deem the patient eligible for doctor-prescribed suicide, inform the patient of the availability of assisted suicide and write the prescription for the lethal dose of drugs on the same day – without the patient ever recovering from the initial shock of being terminally ill.

There are no requirements for a second opinion by a consulting physician to confirm the diagnosis.

All actions to diagnose the patient, inform the patient about the availability of “Medical Aid in Dying,” assess the patient’s capacity, and prescribe the lethal drugs are carried out by an “attending physician.”

An attending physician could prescribe a deadly overdose of drugs to an adult patient who is mentally ill or depressed.

The doctor can prescribe the drugs as long as a patient understands what such a prescription would entail and is able to communicate an informed healthcare decision to request the drugs.

One request for doctor-prescribed suicide is all that is needed prior to receiving a prescription for “Medical Aid in Dying.”

Provision of a prescription for the lethal drugs would be considered a “standard of care.”[3] In legal terms, “standard of care” means 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. The request could be similar to that of a patient’s asking a doctor for a prescription for allergy medication.

“Terminally ill” is very broadly defined, making it possible for a doctor to prescribe the deadly drugs even though the patient could live for years.

A person who is in the undefined “final state” of an “incurable or irreversible condition” would be considered terminally ill if the condition would, within reasonable medical judgment, result in death within six months.[4]  But there is no requirement that the condition be uncontrollable.  There are many conditions (diabetes, certain types of leukemia and, even, alcoholism) that could meet this definition of terminal illness contained in the bill.

For example, diabetes can be both incurable and irreversible but it is controllable.  An insulin-dependent diabetic patient who stops taking insulin will, within reasonable medical judgment, die within six months.  Thus, under the bill, diabetics would be eligible for doctor-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 an official report from Oregon, diabetes is noted as the underlying terminal condition that made the patient eligible for doctor-prescribed suicide.[5]

Patients’ lives could be ended by lethal injection.

The proposal merely states that the patient’s death must occur as a result of “a qualified individual’s affirmative, conscious, and physical act of administering the aid in dying drug to bring about his or her own death.”[6]  The act of self-administration could be by injecting or by taking the drugs by mouth.

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

The proposal requires that death certificates be falsified.

Although the manner of death resulting from an intentional overdose of drugs would be considered suicide, and the cause of death would be the lethal drugs, the proposal states that the cause of death listed on death certificates be the individual’s underlying terminal illness.[7]

The rationale for the proposal is based on inaccurate information.

The proposal states that “data from Oregon also demonstrate that there have been no abuses of the law.”[8]  However, the sheer amount of unknown data in Oregon’s official reports render such a claim implausible.

The 2015 official Oregon report[9] 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”?

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FOOTNOTES:

[1]  See, for example, Kathryn L. Tucker, “End of Life Liberty in DC,” Jurist, December 15, 2016.  Available at: LINK. (Last accessed December 28, 2016) 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) of which she was the founder.

[2]  In legal terms, “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.

[3]  § 3 Standard of Care.

[4]  § 1 Definition of “Terminally Ill.”

[5]  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: LINK.

[6]  § 1 Definition of “Self-administration” and § 2 “Medical Aid in Dying Specifically Authorized.”

[7]  § 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.”

…Dictionary.com: “The intentional taking of one’s own life.”

[8] Section 2 Legislative acknowledgements.

[9] 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: LINK.