Analysis of Hawaii's Assisted-Suicide Proposal
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Currently, assisted suicide is a crime in Hawaii. Any person who
intentionally assists another to commit suicide commits the offense of
manslaughter, a class A felony. [Haw. Rev. Stat. § 707-702 (1)(b)]
H.B. 806, called the "Death with Dignity" Act, is modeled on Oregon's
assisted-suicide law.
It would transform the crime of assisted suicide into a medical treatment.
HAWAII'S ASSISTED-SUICIDE BILL:
◊ Does not require that the
lethal drugs be self-administered.
Unlike Oregon's assisted-suicide law, the Hawaii bill requires a "monitor."
The monitor "shall be present at the time of the actual administration of
the medication to the patient." [§ 41 (a)] [Emphasis added] According
to the proposal, the monitor will have the power to "stop the
administration" if it hasn't been carried out and if it seems that the
patient has had a change of mind. [§ 41 (a)] This provision implies that
someone other than the patient may administer the lethal drugs.
◊ Allows someone who will benefit from the patient's death to
play a key role in signing the patient up for an assisted-suicide
prescription.
A patient's written request for assisted suicide must be witnessed by two
people. [§ 22 (a)] One of those witnesses may not be a relative or a
person who would inherit the patient's property or an owner, operator or
employee of the health care facility where the patient is being treated. [§
22 (b)] But this means that one of the witnesses may fall into those
categories. Then, that person could select a personal friend or acquaintance
to be the second witness.
It allows those who will benefit from the patient's death to play a key role
in facilitating an assisted-suicide prescription, setting the stage for
elder abuse and premature transfer of assets.
According to the National Center on Elder Abuse, between 1 and 2 million
Americans, 65 and older, are abused each year by someone they depend on for
care and protection.
1
◊ Lets doctors help depressed or mentally ill patients commit
suicide without providing any type of counseling or psychological
evaluation.
A referral for counseling is only necessary "if, in the opinion of the
attending physician or the consulting physician, a patient may be suffering
from a psychiatric or psychological disorder causing impaired judgment."
[§ 33] [Emphasis added] So, while a person may be depressed or mentally ill,
a referral for counseling is necessary only if the physician believes the
patient's judgment is impaired (i.e., the patient is unable to make
decisions regarding personal, interpersonal, financial and/or medical
affairs). Many people who are depressed or mentally ill are capable of
making such decisions.
According to Oregon's tenth annual assisted-suicide report, not one patient
was referred for a psychological or psychiatric evaluation before receiving
an assisted-suicide prescription.
2 Yet a recent Oregon Health
& Science University study found that one in four Oregonians who request
assisted suicide are likely to be clinically depressed, and the
assisted-suicide law may fail to protect these patients.
3
◊ Lets a doctor help a patient commit suicide even after the
patient is found to have impaired judgment.
If a patient is found to have impaired judgment, the assisted-suicide bill
does not prohibit a health care provider, family member or other person from
arranging for the patient to be evaluated by other counselors until one is
found who will declare the patient qualified for assisted suicide.
In Oregon, it has been noted that "a psychological disorder - senility, for
example - does not necessarily disqualify a person" from receiving assisted
suicide. An Oregon woman who was suffering from early dementia died of
assisted suicide even though her own physician declined to provide the
lethal prescription. When counseling to determine her capacity was sought, a
psychiatrist determined that she was not eligible for assisted suicide since
she was not explicitly seeking it, and because her daughter seemed to be
coaching her to do so. She was then taken to a psychologist who determined
that she was competent but possibly under the influence of her daughter who
was "somewhat coercive." Finally, a managed care ethicist, who was
overseeing her case, determined that she was qualified for assisted suicide,
and the drugs were prescribed.
4
◊ Gives government health programs, managed care programs and
others the opportunity to cut health care costs by encouraging vulnerable
patients to request assisted suicide.
Tragically, elder abuse is a common occurrence in today's society. Elderly
patients could easily be pressured by family members or unscrupulous health
care providers into requesting assisted suicide. Although the bill
specifically states that it prohibits coercing or using undue influence on a
patient to request the deadly drugs [§ 52 (b)], nothing in the bill
prohibits managed care providers, insurance companies or others from
suggesting assisted suicide to a patient or from encouraging a patient to
request a lethal prescription.
During debate on a similar proposal in California, Sen. Joe Dunn (D-Santa
Ana) cast the deciding "No" vote to defeat the bill because the "power of
money" would influence HMO's, health insurers and the state to save money
while cutting back on patient care.
5
In Oregon, some patients have been told by their health insurance provider
that a costly drug prescribed by a doctor to treat the patient's illness
would not be covered but inexpensive lethal drugs for assisted suicide would
be. 6
◊ Lets a doctor write an assisted-suicide prescription for a
patient without seeing the patient in person after diagnosis of a terminal
condition is made.
The bill requires patients to make three requests for assisted suicide - two
oral requests which do not need to be witnessed and one written witnessed
request. [§ 36] However, none of those requests must be made in person. The
two oral requests could be made by telephone and the written request could
be sent by mail or fax.
◊ Allows prescriptions to be mailed to pharmacies which can
then dispense the lethal drugs to a family member, friend or designated
agent.
The bill does not require that the drugs be provided directly to the
patient. [§ 31 (12) (B) (ii)] In one known Oregon assisted-suicide death,
the patient received his lethal overdose by Federal Express.
7
Under Hawaii's proposal, Federal Express could be the "expressly
identified agent" to bring the drugs to the patient.
◊ Forces hospitals, nursing homes and other care facilities
to allow assisted-suicide referrals on the premises.
The bill states that providers shall not be under any duty to participate in
assisted suicide. [§ 51(a) and (b) (1) (2)] However, the bill specifically
states that referral does not constitute participation. [§ 51 (b) (3)
(2)(C)]
◊ Does not contain any provisions to investigate inaccurate,
incomplete and misleading reports or to investigate abuse surrounding
assisted-suicide deaths.
Although assisted-suicide advocates claim that Oregon's official reports
about the practice of assisted suicide prove that there have been no
problems or abuses, those claims are, at best, misleading.
According to data provided by Compassion & Choices - the assisted-suicide
advocacy group that is the chief promoter of "Death with Dignity" bills -
the organization has participated in three quarters of Oregon's
assisted-suicide deaths.
8 Oregon's largest newspaper
characterized this as a situation in which "essentially, a coterie of
insiders run the program, with a handful of doctors and others deciding what
the public may know."
9
As with Oregon's assisted-suicide law, the Hawaii bill requires doctors who
write prescriptions for assisted-suicide drugs to report those cases to the
state [§ 42] but, as in Oregon's law, there are no penalties for
non-reporting or for inaccurate or incomplete reporting.
From the time that Oregon's law went into effect, state officials have
acknowledged that "it is difficult, if not impossible to detect accurately"
whether reports are complete.
10 State officials have
acknowledged that they "assume, however, that physicians were their usual
careful and accurate selves" when filing reports about their involvement in
assisted suicide.
11
One Oregon official explained that investigation into potential
assisted-suicide irregularities cannot take place since "not only do we not
have the resources to do it, but we do not have any legal authority to
insert ourselves."
12
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1
Nation Center on Elder Abuse, "Fact Sheet: Elder Abuse Prevalence and Incidence"
(2005), page 1.
2
DHS, "Tenth Annual Report on Oregon's Death with Dignity Act," March 18, 2008,
Table I. 3
Linda Ganzini, Elizabeth Goy, Steven Dobscha, "Prevalence of depression and
anxiety in patients requesting physician' aid in dying: cross sectional survey,"
British Medical Journal, Oct. 8, 2007, pp. 973-975.
4 Erin Barnett, "A family
struggle: Is Mom capable of choosing to die?" Oregonian, Oct. 17, 1999.
5 Greg Lucas, "Committee votes
down assisted-suicide bill," San Francisco Chronicle, June 27, 2006.
6 KATU TV; Portland, OR; July
31, 2008. 7
Erin Hoover, "Dilemma of assisted suicide: When?" Oregonian, Jan. 17, 1999.
8 "Compassion & Choices of
Oregon Summary of Deceased Patients, 1/1/98 through 9/25/08" distributed by
George Eighmey, Executive Director of
C & C of Oregon, Vancouver, WA Public Library Forum on I-1000, Sept. 25, 2008.
9 Editorial Board, "Washington
state's assisted-suicide measure: Don't go there," Oregonian, Sept. 20, 2008.
10 New Eng. J. Med, Feb. 18,
1999, p. 583. 11 OHD,
CD Summary, vol. 48, no. 6, March 16, 1999.
12 Testimony of Dr. Katrina
Hedberg before the House of Lords Select Committee on the Assisted Dying for the
Terminally Ill Bill, Assisted Dying for the Terminally Ill Bill [HL], Volume II:
Evidence. Apr. 4, 2005, p. 266, question 615.
Updated: February 13, 2009
International Task Force
on Euthanasia & Assisted Suicide
P.O. Box 760, Steubenville, OH 43952
740-282-3810 or 1-800-958-5678
www.internationaltaskforce.org
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