Legislature(2003 - 2004)
04/29/2004 08:08 AM Senate JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 25-HEALTH CARE SERVICES DIRECTIVES
MS. LINDA SYLVESTER, staff to Representative Weyhrauch, said she
would provide a three-minute synopsis of the bill, answer
questions, and explain an amendment proposed by the Department
of Health and Social Services (DHSS) on behalf of emergency
medical technicians. She stated:
What HB 25 does is it repeals current statute. Alaska
has, on the books, a do-not-resuscitate order statute,
a living will - in the power of attorney statutes...in
a couple of places there is a little check-off where
you can appoint an unnamed person to make your health
care decisions. That will be repealed. In the mid-
'90s, Alaska passed the advanced directives for mental
health care. That is being repealed. And the
anatomical gift act is being repealed. It's being put
into one chapter and that's HB 25.
The new law is surrogates, and that's on page 5 of the
bill. The concept of surrogates is not new at all.
What's new though is providing a statutory guideline
for how surrogates are to function in their decision
making capacity. If you sign a document, if you have a
power of attorney or if you sign an advanced directive
naming your spouse or naming some other individual,
then you're the principal, they have the power of
attorney. You call them in HB 25 your agent. If you've
never gone through the process of signing a power of
attorney, like 95 percent of us have never done that,
then you have a health care surrogate. So for myself
or my husband, if I were incapacitated, my husband
would be making decisions for me. He's the right
person to make decisions for me because we have a
relationship. I love him, he loves me, he knows who I
am and he knows what my values and goals are. That's
the right decision.
HB 25 sets out criteria for who these people will be
in the order - your spouse, your living parent, your
adult child, your sibling, that type of a thing. And
then the guidelines for how they make their decision
for you are based on your best interests and that's
carefully defined and has been carefully worked out
and it's consistent with current medical practice.
This is a part of the movement known as the five
wishes. Paul Malley (ph) testified earlier on this
notion. It's obvious. It makes sense. It's just a new
concept to be put into statute.
The concern with surrogates, however, is that they're
just not making decisions for whether or not you get a
medication for a fever. Some of the decisions are life
and death and decisions of life-sustaining procedures.
That's a concern and it's appropriate for the state to
carefully consider protections to make sure that
people are not being taking advantage of. So, on page
8, we have carefully worked out protections and
guidelines for the withholding and withdrawal of life-
sustaining procedures. Again, this happens everyday.
Right now these decisions are being made in hospitals.
It's nothing new. We're not making new law. We're not
telling people how to live and die. We're providing
guidelines and protections. According to the Supreme
Court, in the Cruzan (ph) case, this is appropriate
for the state to do this.
In order for a surrogate or an agent to make a
decision regarding life-sustaining procedures, two
conditions have to be met. You have to be
incapacitated and you have to have a qualifying
condition. So a decision to withdraw life-sustaining
procedures - that could be renal dialysis - that could
be CPR - that could be anything, those decisions are
not going to be made when a situation is
inappropriate. You have to have a qualifying condition
and the qualifying conditions are one of two things: a
terminal condition or a condition of permanent
unconsciousness and they're carefully defined. Again,
they come from the practice of medicine. These are
what's going on in the real world now. The decisions
are between the doctor and the family. There's no
euthanasia going on. Alaska does not authorize
euthanasia.
This bill specifically [prohibits] euthanasia. In
Alaska, it's manslaughter if a doctor assists you in
your suicide and you do not have a right under the
Constitution to request someone to assist you in
suicide. That exists outside of HB 25. HB 25 just
makes reference to the prohibition. It doesn't deal
with it. That stuff exists whether HB 25 is here or
goes away.
The need for HB 25 is apparent and it's convenient. It
includes an optional form where individuals can make
their wishes known and this is desirable because
family members, whether they're your agent - you have
an agent, or if you are just a surrogate decision
maker, family members are going to be scrambling to
try to understand what your wishes are. This form
increases the dialog and the form allows individuals
to state their wishes, their attitudes, their goals
and the sum of it is that your desires for your health
care will follow you even after you have lost
capacity.
The amendment that we have is, again, offered by the
Department of Health and Social Services. It was
unclear with the existing language whether or not a
do-not-resuscitate order from out of state would be
recognized in the state of Alaska and that's very
critical for EMTs who are out in the field. This would
be, if they come upon an individual with a bracelet,
some kind of an identification program that's operated
by either the State of Alaska or another state,
they're very common programs, EMTs are required to
always resuscitate. If they have this band, they just
have to have the assurance that - they have to be able
to assume that the band is appropriately issued and
they can't be required to determine whether a state
matches Alaska law. However, these do-not-resuscitate
orders will only be executed to the extent that they
conform to Alaska law.
I would also like to point out to the committee
Senator Dyson, who has joined us and he's graciously
become a co-sponsor of this bill. Representative
Weyhrauch has worked very closely with Senator Dyson
on some of the sensitive issues in HB 25 and our
absolute goal was that we would never pass a bill out
of the Senate HESS Committee until Senator Dyson was
comfortable with it and supported it. We're very
pleased that he's joining us.
CHAIR SEEKINS directed attention to Amendment 1, which reads as
follows.
23-LS0137\Z.3
Bannister
A M E N D M E N T 1
OFFERED IN THE SENATE
TO: SCS CSHB 25(HES)
Page 15, lines 23 - 24:
Delete "effective for the purposes of this
chapter to the extent it complies with the law of this
state"
Insert "recognized for the purposes of this
chapter. However, the do not resuscitate order or the
do not resuscitate identification may be implemented
only to the extent that the implementation does not
conflict with the laws of this state"
CHAIR SEEKINS moved to adopt Amendment 1. With no objection,
Amendment 1 was adopted.
SENATOR FRED DYSON told members he feels like this bill is one
of his foster children. He has spent more time on HB 25 this
session than on any other piece of legislation, with the
exception of the spending limit. He said HB 25 is an excellent
piece of work, and has been called the finest end of life
directives bill in the nation. Representative Weyhrauch has
pulled all of the stakeholders into the process during the last
16 months.
SENATOR DYSON informed members that two issues were
controversial. The Senate HESS Committee added language so that
there is a presumption that when dealing with a comatose woman
who is pregnant, and in a permanent, unconscious state, and is
terminal, that woman would be kept alive as long as possible to
give the unborn child a chance to survive outside of the womb.
Language was added at the request of Senator Guess that directs
women to consider including such language in end-of-life
directives. He emphasized that in the version before members, in
all options, if there is any doubt, the bill presumes that
medical staff will opt for life.
He told members that one controversial issue that a lot of time
has been spent on is when artificial hydration and food would be
withdrawn. He said as he understands the bill, that would only
be done when the person meets the following qualifying
conditions:
· The person has a terminal condition and will die within a
relatively short period of time, meaning weeks and days.
· The person is in a permanent unconscious state with no
known medical technology to restore health, and has
executed an end-of-life directive saying he or she does not
want his or her dying body preserved artificially. If no
advanced directive exists, then the decision is made
according to the best interest of the patient, which must
take into account pain by the family and medical staff.
· This bill allows for judicial appeal so that a party who
opposes the decision can go to court to get a stay.
SENATOR DYSON said he believes this bill makes the proper
distinction that the default position is life in all cases. An
advanced directive to the contrary would put sideboards on that.
This bill also updates Alaska statutes on organ donation and
puts clear directives in statute. He repeated that he believes
this may be one of the finest pieces of legislation that has
come out of this legislative session.
8:35 a.m.
SENATOR OGAN asked Senator Dyson to elaborate on the
determination of the best interest of the patient, and how that
would be determined if no family members are available, for
example with an unidentifiable homeless person.
SENATOR DYSON deferred to Dr. Wallington to answer that question
but reminded members that such a decision will only be made if
the patient meets the qualifying conditions. He explained that
the person must be terminally ill and determined by a
neurological expert to be permanently unconscious. He said in
the case of a person with no surrogate or state appointed
guardian, the medical team would make that decision.
DR. MARIA WALLINGTON, a medical ethicist at Providence Hospital,
told members that some of the patients will not be dying, and if
the medical team recognizes that a patient will remain unable to
make his or her own decision, the medical staff will
automatically go to court for guardianship. If the patient has a
very short time to live, the usual practice is that physicians
want multiple inputs in the decision and, as the ethicist, her
involvement is commonly requested. The bill does not actually
require that an ethicist be involved. She said she believes the
bill does a complete job of trying to protect patients and
reflects current practice.
CHAIR SEEKINS asked Dr. Wallington if she agrees that this bill
is not a step toward euthanasia.
DR. WALLINGTON said she absolutely agrees and, "We have no
intention of supporting an act of killing people. What we're
trying to do here is outline a process to be sure that people's
wishes [indisc.] to assess them, and it gives the process to
follow if we don't have that information. We are not intending
to do away with people in any way."
SENATOR OGAN questioned whether the bill contains any safeguards
in case a physician believed in the philosophy of speeding a
person's death.
DR. WALLINGTON said HB 25 is not an attempt to rewrite the
legislation that deals with homicide and she believes it
improves direction to the health community by encouraging them
to take advantage of the legal avenues available.
MS. SYLVESTER added that the concern is not so much physicians,
because the other factors that are operating are individual
liability and the possibility of losing a license to practice.
Those factors have created a situation in which doctors always
err on the side of life because they cannot be sued for keeping
a person alive. She noted that nefarious intentions on the part
of family members who might want access to the patient's assets
have been considered. She explained:
We trust doctors to practice to look after life and to
recognize when they're in situations when someone is
not behaving or talking one thing but their actions
are not in the best interest of the patient they are
making decisions for. In those situations, doctors
ethically are bound to not take action but our bill
goes a step farther to remind doctors that if they are
in a situation where something doesn't look right,
doesn't smell right, then they stop, they don't act on
the decisions, and they report it to the institution.
The intention is that will trigger the ethics board
and that will trigger someone going immediately to get
the public guardian involved and get others involved,
so the alarms are going to go off. So we've considered
that safety valve and that's probably the bigger
concern, rather than doctors who are obligated by
criminal law to behave in a certain way, and civil
law, and then also by their professional code of
ethics.
SENATOR DYSON said he is comfortable with the practice in Alaska
hospitals and that the intent language in the bill is very clear
in two places that the presumption is in favor of life. He said
one scenario of concern, for example, was that of an 85-year-old
man who was getting hospice care at home and was marginally
conscious. He fell in love, married his 35-year-old caregiver
and died shortly afterward. His prescribing physician was the
"main squeeze" of the caregiver, who had a substantial estate.
He said the family contacted a medical examiner to do an
autopsy, during which a lot of toxic medications were found in
the man's system. He said a second bothersome scenario is one in
which a caregiver got a patient to sign an advance directive and
durable power of attorney, under which she was the executor of
his considerable estate. He then died within 10 days. Those
situations did not occur in hospitals. He noted he is making
efforts to get more funding for state medical examiner offices.
CHAIR SEEKINS asked for a definition of "permanently
unconscious."
DR. WALLINGTON told members that term is defined in the bill.
She explained that permanently unconscious is already applied if
there has been a long period of observation, a month or longer,
depending on the situation. She leaves that determination to a
neurologist. She added that determination requires that a
certain length of time pass.
CHAIR SEEKINS asked how a neurologist would come to that
conclusion.
DR. WALLINGTON said the neurologist would make that
determination based on the history, insult and the results of
brain studies. Neurologists know that over time, if a person has
not recovered a certain level of activity or brain function, the
chance of recovery gets smaller.
CHAIR SEEKINS asked if physicians commonly make that
determination now.
DR. WALLINGTON said physicians make that diagnosis when it's
present.
SENATOR THERRIAULT asked if the estate planning council in
Alaska has reviewed this bill.
MS. SYLVESTER said she did identify those individuals and raised
it with them. Beth Chapman, a local attorney whose practice
focuses on estates, wills, and guardianship issues, worked on
this bill. Her interest was to fix the current situation with
the power of attorney and getting decisions out of the courts.
She pointed out that HB 25 does not address estate planning.
CHAIR SEEKINS took public testimony.
MR. PAT LUBY, Advocacy Director of AARP in Alaska, told members
the development of HB 25 has involved an extremely long process.
He pointed out that the bill creates a voluntary program in that
no one has to sign an advanced directive. However, AARP
encourages all of its members to sign them. AARP sees this as a
consumer issue; that people should make their own decisions
about how they want to be treated at the end of life and convey
those decisions to family members and medical professionals.
AARP strongly supports HB 25.
MS. CAROL EDWARDS, an oncology nurse in Juneau for over 20
years, said she is also the health policy liaison for the
National Oncology Nursing Society and a member of the Board of
Directors of the Alaska Nurses Association, which she is
representing today. She said she began working on this
legislation four years ago and is glad to see its progress. She
maintained that HB 25 does not tell people what to do; it allows
them to make choices. It is not a bill representing one
particular religion. She continued:
Death is something that we all must face. The type of
death that we have can be, in large part, within our
own control. HB 25 allows us to outline the treatment
that we do or do not want in our last days. Death can
be a beautiful and a peaceful experience for the
patient as well as for the family and friends or it
can be extremely traumatic and painful and stressful
for all involved.... I just want to say that everyone
has a right to pass from this world in a way that is
in harmony with their own beliefs, whatever they may
be and to make these desires known and to assure a
peaceful ending. This is for the individual himself
and also for the family that is left behind to make
this a positive experience, as best as it can be. It
is our responsibility, your responsibility, to
guarantee this right for all Alaskans and I sincerely
hope that this bill will be passed before this session
is ended. Thank you so much.
MR. CHIP WAGONER, representing the Alaska Catholic Conference
gave the following testimony:
Thank you sir. This is the public policy arm of the
church in Alaska, currently made up of the four
bishops and archbishops. The church has been involved
with this issue - the end of life issues - for over
500 years and has written extensively on it. The
conference supports the bill, which is before you
today. We don't agree on all of the aspects of the
bill but we recognize that the bill is a vast
improvement and is a good bill and, in fact, it is an
excellent bill.
There are two qualifying conditions and Senator Dyson
made very, very clear that one of those qualifying
conditions in which life-sustaining support of
procedures can be withheld or withdrawn is terminal
illness where you're going to die within a relatively
short period of time. This would not include a 45-
year-old person who is otherwise healthy but needs to
be on a dialysis machine in order to continue life.
This is for somebody near death and that qualifying
condition, to remove or withhold life sustaining
procedures, under Catholic theology is appropriate if
you take into account the risk, the burdens, the
benefits on the patient and, in our teaching, on the
community and on the family. The best interest
standards deal with resuscitation, but that is
appropriate given that this is a bill and we're not
writing church doctrine. It is something, as was
stated by the speaker just before me, [which] deals
with a journey of life. With Catholic teachings, and
many other peoples believe your journey does not end
with your death, it continues gloriously so that
qualifying condition is one the church accepts.
The second qualifying condition, we had a recent
change with the statement from the Holy Father on
st
March 31 of this year in which he had stated that
providing of artificial hydration and nutrition to
permanently - actually they used permanently
vegetative state, which is somebody who is permanently
unconscious for a year or more in medical technology,
would be ordinary care and should be continued to be
provided and the bishops have asked me to state that
they do not agree with that provision as a qualifying
condition in this bill but we support the bill even
with that provision in it because it is, as I said, a
good bill and it has lots of other protections.
The last point I would like... [END OF SIDE A]
TAPE 04-56, SIDE B
MR. WAGONER continued:
...is that in regard to the best interests standards,
the term - you're evaluating the treatments of the -
the benefits of the treatments, the effect on the
patient, the pain on the patient and the like, and we
had wanted an amendment to that. We are not going to
seek that amendment or any amendments. We would like
to see this bill move out of this committee today and
we would like to see this bill pass. But I would like
to point out for the record that Section 13.52.135
deals with the best interest standards, which states
that in determining the best interest, health care
treatment may not be denied to a patient because the
patient has a disability or is expected to have a
disability. With that in the bill, and I had forgotten
that it specifically mentioned best interest, with
that in the bill I think that concern is alleviated.
It's not the way I would have written it as an
attorney but this compromise is acceptable.
I can't tell you the number of hours that some of us
have put into this bill - hundreds of hours. Senator
Dyson was correct. His staff is to be commended;
Representative Weyhrauch [is] to be commended. Is it
an absolute perfect bill from Catholic theology? No.
Is it a very, very good bill that the Catholic Church
supports in Alaska? Yes and we would urge you to move
it out of this committee and have it go to the floor,
have it pass, and have this law in the State of
Alaska. And I'd be happy to answer any questions.
He commended Ms. Sylvester for the work she has done on this
bill.
CHAIR SEEKINS announced that with no further participants,
public testimony was closed and that the committee would take a
5-minute recess.
9:02 a.m.
SENATOR OGAN moved SCS CSHB 25(JUD) from committee with
individual recommendations and attached fiscal note(s). There
being no objection, the motion carried.
| Document Name | Date/Time | Subjects |
|---|