03/19/2012 01:30 PM JUDICIARY
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ALASKA STATE LEGISLATURE SENATE JUDICIARY STANDING COMMITTEE March 19, 2012 1:32 p.m. MEMBERS PRESENT Senator Hollis French, Chair Senator Bill Wielechowski, Vice Chair Senator Joe Paskvan Senator John Coghill MEMBERS ABSENT Senator Lesil McGuire OTHER LEGISLATORS PRESENT Senator Donny Olson COMMITTEE CALENDAR SENATE BILL NO. 172 "An Act relating to health care decisions, including do not resuscitate orders." - HEARD & HELD SENATE BILL NO. 198 "An Act establishing procedures relating to issuance, suspension, or revocation of certification of police officers by the police standards council; making certain court service officers subject to certification by the police standards council; making confidential certain information that personally identifies a police officer; relating to requesting or requiring police officers to submit to lie detector tests; repealing a provision exempting certain police officers from a prohibition against requiring certain employees to submit to lie detector tests; and providing for an effective date." - HEARD & HELD PREVIOUS COMMITTEE ACTION BILL: SB 172 SHORT TITLE: CARE DIRECTIVES/DO NOT RESUSCITATE ORDERS SPONSOR(s): SENATOR(s) DYSON 01/20/12 (S) READ THE FIRST TIME - REFERRALS
01/20/12 (S) HSS, JUD
01/30/12 (S) HSS AT 1:30 PM BUTROVICH 205
01/30/12 (S) Moved SB 172 Out of Committee
01/30/12 (S) MINUTE(HSS) 02/01/12 (S) HSS RPT 4DP 02/01/12 (S) DP: DAVIS, MEYER, EGAN, DYSON 03/19/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg) BILL: SB 198 SHORT TITLE: POLICE OFFICER PROTECTIONS/CERTIFICATION SPONSOR(s): STATE AFFAIRS 02/17/12 (S) READ THE FIRST TIME - REFERRALS 02/17/12 (S) STA, JUD 03/01/12 (S) STA AT 9:00 AM BUTROVICH 205 03/01/12 (S) Heard & Held 03/01/12 (S) MINUTE(STA) 03/06/12 (S) STA AT 9:00 AM BUTROVICH 205 03/06/12 (S) Moved CSSB 198(STA) Out of Committee 03/06/12 (S) MINUTE(STA) 03/07/12 (S) STA RPT CS 1DP 2NR 1AM NEW TITLE 03/07/12 (S) DP: WIELECHOWSKI 03/07/12 (S) NR: MEYER, GIESSEL 03/07/12 (S) AM: PASKVAN 03/19/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg) WITNESS REGISTER SENATOR FRED DYSON Alaska State Legislature Juneau, AK POSITION STATEMENT: Sponsor of SB 172. CHUCK KOPP, Staff Senator Fred Dyson Alaska State Legislature Juneau, AK POSITION STATEMENT: Provided a sectional analysis for CSSB 172. SENATOR DONNY OLSON Alaska State Legislature Juneau, AK POSITION STATEMENT: Testified in strong support of SB 172. MARGRET A. MULLINS, representing herself Anchorage, AK POSITION STATEMENT: Testified in support of SB 172. STEPHEN THOMAS RUST, MD., representing himself Anchorage, AK POSITION STATEMENT: Testified in opposition to SB 172. GEORGE RHYNEER, MD., representing himself and Alaska Physicians and Surgeons (APS) Anchorage, AK POSITION STATEMENT: Testified that the intent of SB 172 is admirable but it won't accomplish what the sponsor intended. RANDALL MCGREGGOR, MD., Chief Medical Officer Fairbanks Memorial Hospital Fairbanks, AK POSITION STATEMENT: Testified in opposition to SB 172. RYAN MCGHAN, MD., representing himself Anchorage, AK POSITION STATEMENT: Stated opposition to SB 172. DONNA STEPHENS, representing herself Anchorage, AK POSITION STATEMENT: Testified that SB 172 has the potential to make end-of-life decisions even more difficult. BRIAN TALBOTT-CLARK, representing himself Anchorage, AK POSITION STATEMENT: Testified in opposition to SB 172. RICHARD MANDSAGER, MD., Chief Executive Providence Alaska Medical Center Anchorage, AK POSITION STATEMENT: Testified in opposition to SB 172. CRIS GIFFORD, Patrol Sergeant Juneau Police Department and Municipal President Public Safety Employees Association (PSEA) Juneau, AK POSITION STATEMENT: Testified in support if SB 198. ACTION NARRATIVE 1:32:00 PM CHAIR HOLLIS FRENCH called the Senate Judiciary Standing Committee meeting to order at 1:32 p.m. Present at the call to order were Senators Paskvan, Wielechowski, and Chair French. Senator Coghill arrived soon thereafter. SB 172-CARE DIRECTIVES/DO NOT RESUSCITATE ORDERS 1:32:16 PM CHAIR FRENCH announced the consideration of SB 172, and commented that this was a tricky area of the law and he, personally, would be cautious. 1:33:14 PM SENATOR DYSON, sponsor of SB 172, introduced the bill paraphrasing the following sponsor statement: The purpose of this bill is to provide for the protection of a patient's right to prevent a physician from issuing a Do Not Resuscitate (DNR) order on the patient without the expressed consent of that patient, or if the patient lacks capacity, without the concurrence of a second physician. In 2004 the Alaska Legislature drafted the current AS 13.52 Health Care Decisions Act. The Legislature included language in AS 13.52.120(a) establishing a presumption in favor of life. Legislative Legal states the language of the Health Care Decision Act, when read in its entirety, supports interpreting the chapter to allow a patient (or the patient's authorized representative) to prevent a physician from issuing a DNR order, but that ambiguities in the chapter could result in other interpretations. This ambiguity in statute allows unnecessary emotional and mental anguish to Alaskan residents faced with critical end-of-life decisions. SB 172 clarifies the authority of DNR decisions with respect to patients and physicians, and amends the Alaska Health Care Directive form to allow patients to accept or refuse life-sustaining procedures. 1:35:36 PM SENATOR COGHILL joined the committee. CHAIR FRENCH recognized that Senator Donny Olson had joined the committee. SENATOR DYSON said he interpreted the Duke Law Review article that analyzed the Alaska Health Care Decisions Act to say that the statute was ambiguous and did not represent the clear intention of the legislature. He explained that his office became involved in this issue when a physician at a hospital refused to remove a do not resuscitate (DNR) order that was issued without permission from the patient or his authorized representative. Legislative Legal was asked if AS 13.52, the Health Care Decisions Act, was clear that a patient with capacity had the authority to revoke a do not resuscitate order. Legislative Counsel, Terry Bannister, stated that the law is fairly clear that a doctor has a right to issue a DNR order but is limited by the decision of the patient or his/her authorized representative to revoke the order. She also said there were ambiguities in the statute that could result in other interpretations. His office originally thought that the ambiguities could be addressed in a Revisor's bill since the idea was to simply clarify the original intent of the law. Input was sought from the hospital executives as well. The issue appeared to be resolved until significant disagreements came up after the bill was heard in the Senate Health and Social Services Committee. Physicians generally did not agree that a patient should be able to revoke a DNR order. The proposed committee substitute (CS) accommodates some of the suggestions that were made. 1:45:12 PM CHAIR FRENCH asked for a motion to adopt the proposed committee substitute. SENATOR WIELECHOWSKI moved to adopt the work draft CS for SB 172, labeled 27-LS0991\D, as the working document. CHAIR FRENCH announced that without objection, version D was before the committee. 1:45:36 PM CHUCK KOPP, staff to Senator Fred Dyson, provided a sectional analysis for CSSB 172. Section 1 amends AS 13.52.045 to clarify that a DNR order does not prevent a health care institution or facility from providing life-sustaining procedures to a patient. CHAIR FRENCH commented on how difficult he found this section to understand and that it was exacerbated by the specific legal definitions. SENATOR WIELECHOWSKI asked if the section was basically saying that a health care institution can disregard a DNR order. MR. KOPP said no; the issue of life sustaining procedures is different than a DNR order. A patient that has a DNR order may have another medical event that isn't related to the reason the DNR order was issued. This section says that a health care facility does not have to interpret that DNR order as preventing the providing of life sustaining treatment or medications. That conversation can take place between the physician and the patient or his/her authorized representative. SENATOR WIELECHOWSKI asked for an example. MR. KOPP said a DNR is generally issued with a qualifying condition such as permanent unconsciousness or a terminal condition. In an advance health care directive a patient can declare beforehand that he/she would like certain procedures administered or undertaken. If the patient is unconscious, their surrogate could comment on what life sustaining procedures to employ. He reiterated that a life sustaining procedure does not overrule a DNR order. SENATOR DYSON added that artificial feeding is a good example. A DNR order does not mean that a patient can't continue to be fed through a tube or given assistance in breathing or that those procedures can't be applied. He emphasized that a DNR order does not prohibit a hospital from doing whatever it believes is appropriate for a particular patient. 1:50:35 PM SENATOR PASKVAN asked for a distinction between an individual instruction or health care decision and a DNR order. MR. KOPP explained that an individual instruction comes straight from the individual, whereas a health care decision that's in an advance directive can be made by the individual or their surrogate. SENATOR PASKVAN said he was trying to understand how an instruction from an individual interacts with a DNR which is an instruction that does not come from the individual. MR. KOPP said he'd like Legislative Legal to comment because their opinion is that a DNR is a health care decision. He offered his belief that the physician has the authority to issue the DNR order and the patient has the statutory authority to make it ineffective. Both of those are health care decisions. SENATOR PASKVAN commented that it's one thing for a patient to say he/she chooses not to follow recommended care, but it's another thing to say a physician has to do something the physician doesn't recommend. SENATOR DYSON offered his belief that most doctors and institutions will administer CPR to a patient that goes into arrest. 1:56:37 PM MR. KOPP continued the sectional analysis. Section 2 amends AS 13.52.060(e) to prohibit a health care provider from declining to comply with a DNR order for reasons of conscience if the order is consistent with the provisions of AS 13.52. Nor is a health care provider, health care institution or facility allowed to decline to comply with an individual instruction or a health care decision that requests that a do not resuscitate order be made ineffective, except as provided in AS 13.52.030(h). Subsection (h) clarifies that health care providers may decline to comply with a decision of an authorized surrogate if that decision is not in the best interest of the patient. The sponsor believes the narrow focus of the bill to protect patients from being subject to a DNR order against their wishes is consistent with current statutory language. He cited the current language in AS 13.52.100(c) as an example. CHAIR FRENCH clarified for the record that Mr. Kopp was reading from the statute, not the bill. MR. KOPP cited the immunity provision in AS 13.52.080(a)(6)(B) and then directed attention to the handout containing highlighted subsections of Chapter 13.52 that support the ability of a patient not to be subject to a DNR order against the patient's wishes. He read AS 13.52.120(a) and AS 13.52.100(a) and posited that this was why the amendment was consistent with current law. 2:01:48 PM Section 3 amends AS 13.52.060(f) to state that a health care provider, health care institution or facility may not decline to comply with an individual instruction or health care decision that requests that a DNR order be made ineffective except as provided in AS 13.52.030(h). Section 4 amends AS 13.52.065(a) to limit a physician's right to issue a DNR order only as provided in AS 13.52.065. Section 5 amends AS 13.52.065(b) to state that the protocol adopted by the Department of Health and Social Services (DHSS) for withholding CPR by health care providers and institutions must comply with AS 13.52.065. Section 6 adds new subsections (g-j) to AS 13.52.065. Subsection (g) prohibits a physician from issuing a DNR order without the express consent of the patient that has capacity and is 18 years or older. Consent may also be provided by an advance health care directive or by the patient's authorized surrogate. Subsection (h) states that a physician may issue a DNR order without the express consent required in subsection (g) if the patient does not have capacity, no one is authorized to make health care decisions, and the patient has an advanced health care directive that indicates the patient wants a DNR order, or the directive is silent about the issuance of a DNR order and another physician concurs in the decision. Subsection (i) requires a physician to revoke a DNR order if the DNR order violates subsection (g), if the patient has capacity and requests that the DNR order be revoked, if the patient does not have capacity and does not have an advance health care directive that indicates that the patient wants a DNR, and a person authorized to make health care decisions for the patient requests the revocation of the DNR order. A physician shall also revoke a DNR order if the patient is under 18 years of age and the parent or guardian of the patient requests that the DNR order be revoked. Subsection (j) says a physician may revoke a DNR order issued by another physician for a patient, if the physician has a physician-patient relationship with the patient. Section 7 amends AS 13.52.080(a) to replace a citation to the do not resuscitate protocol in AS 13.52.065 that is repealed by this bill. Section 8 amends the optional form in AS 13.52.300 by adding new subparagraph (E) that gives instructions for life-sustaining procedures. The patient has the opportunity to accept or decline life-sustaining procedures or identify specific life-sustaining procedures the patient wishes to receive. Section 9 amends AS 13.52.390(17) by expanding the definition of "health care decision" to include a direction relating to the provision of CPR or other resuscitative measures. Section 10 repeals AS 13.52.065(f) that currently addresses how DNR orders are made ineffective. Section 11 adds a provision to indicate how DNR orders made before the effective date will be treated in light of the bill. 2:07:28 PM SENATOR DONNY OLSON stated that he strongly supports SB 172 because it will clear up some of the confusion about a person's basic rights regarding health care decisions. He offered his belief that each individual should be the most in charge of his/her or her own health care. The patient's wishes should be honored whenever possible. SENATOR PASKVAN expressed reservations about a patient having the right to change a physician's recommendation regarding a DNR order. SENATOR OLSON offered his belief that the patient should always have the right to overrule a physician. CHAIR FRENCH asked if a patient can demand a certain medicine. SENATOR OLSON replied it would up to the physician to decide whether or not to succumb to the demand. CHAIR FRENCH asked if a patient can compel a physician to perform acupuncture. SENATOR OLSON replied not if the physician isn't trained in acupuncture. CHAIR FRENCH asked if a patient can compel a physician to perform CPR. SENATOR OLSON replied it's the moral obligation of any physician to come to the aid of someone in cardiac arrest. CHAIR FRENCH asked if a patient can compel a physician to perform CPR even if the physician judges it to be medically ineffective. SENATOR OLSON recalled a situation when he was hesitant to perform CPR because he didn't have malpractice insurance. 2:15:38 PM MARGRET A. MULLINS, representing herself, Anchorage, AK, said she was also speaking on behalf of her late husband to ask the committee to change what is apparently poor DNR language in current [statute.] It caused both she and her husband great pain and suffering. She explained that when her husband was diagnosed with a stage 3 glioblastoma multiforme (GBM) tumor all the attending physicians said treatment would only be palliative. They were urged to sign a DNR order because full-code care might break ribs, puncture lungs and cause pain resulting in "poor quality of life." She and her husband instead chose to rely on their faith in God. They repeatedly said that DNRs were against their faith and that poor quality of life and a short life expectancy were not things they were considering. These were matters in God's hands. She cited examples of family members and others who after prayer did what their physicians said was impossible, they recovered. MRS. MULLINS said her husband continued to oppose a DNR order, although the requests to sign became increasingly adamant. She described the progression of the disease, treatment at a larger hospital in the Lower 48 and follow-up treatment in Anchorage. She also described admission difficulties and the poor quality of care her husband received when he was admitted to the Anchorage hospital for an unrelated medical situation. She complained that he was being treated with a "why bother" attitude since he also had a GBM tumor. The requests to sign the DNR order continued but she and her husband held firm because it was God's decision. Nevertheless, a DNR order kept appearing on his record. She said she believes that he was murdered by neglect and because of the DNR attitude, which is that life isn't worth much once there's a terminal prognosis. MS. MULLINS urged the committee to clarify the language in statute so that health care decisions are not taken out of the hands of individuals. "No doctor has the right to say my husband does not have the right to live," she concluded. She said she would send her written testimony. CHAIR FRENCH assured Mrs. Mullins that he would distribute her testimony to the committee and it would be placed in the record. 2:35:23 PM STEPHEN THOMAS RUST, MD., representing himself, Anchorage, AK, said he was testifying in opposition to CSSB 172. He explained that he has been in active practice for 24 years and frequently deals with end-of-life issues. He relayed that he has intimate knowledge of Mr. and Mrs. Mullins' situation. DR. RUST stated that the current Alaska Health Care Decision Act protects a person's right to consent or decline any medical procedure or treatment, and the medical community strongly supports a person's right to have control over their own body. Current medical practice and current law are both strongly biased towards life, he said. CPR is applied if a person's medical condition and history isn't clear, if their personal goals of care and individual beliefs are unknown, and if any attending physician believes it should be applied. However, it isn't a panacea. CPR is an extreme measure and violent act that is performed when an individual arrests. He noted that about 17 percent of people that arrest in a hospital and are given CPR survive to discharge. CHAIR FRENCH observed that it hasn't been stated on the record that a DNR order is entirely about CPR. He directed attention to AS 13.52.390(12) that defines a DNR order as "a directive from a licensed physician that emergency cardiopulmonary resuscitation should not be administered to a qualified patient." DR. RUST said the physician community values life on a de facto basis, but sometimes medical procedures become ineffective and are ill advised. That being said, he opined that it's a bit ludicrous to tell physicians to use their medical expertise and best judgment in regard to administering all medical procedures except CPR. He said he was aware of the sponsor's intent but it wouldn't be achieved with this bill. He briefly discussed the Mullins case and countered the claim that a patient would ever be refused admission because of a DNR order in their record. He explained that a Comfort One is the only way that EMS personnel are not obligated to perform CPR on a dying patient, and posited that Mrs. Mullins was referencing that when she spoke about a DNR order. 2:42:26 PM CHAIR FRENCH expressed concern that the bill could potentially make a physician feel compelled to provide care that was not medically appropriate. He noted that letters in the packet articulate that same concern. DR. RUST said if a patient says he/she doesn't want CPR, the physician is obligated to honor that wish. The patient also has the right to revoke that decision. Current statute covers that very well, he said. 2:43:59 PM GEORGE RHYNEER, MD., representing himself and members of Alaska Physicians and Surgeons (APS), Anchorage, AK, said he sympathizes with the sponsor's intent to give patients more control over their treatment. He explained that CPR was developed to reverse a sudden and unexpected cessation of heartbeat or breathing, not as a technique to restart critical organs. It has become standard practice for the treatment of unexpected death, but it isn't generally used when death is imminent. Because physicians, patients, and families define "imminent" very differently, he said he believes the decision about whether or not to administer CPR should be made by everyone concerned. He said just as he can't force treatments on patients, medical ethics dictate that he shouldn't have to provide treatments that he deems ineffective, harmful, or useless. He applauded the sponsor for bringing forward end-of- life issues and suggested developing a working group comprised of patients, physicians, and legislators to continue the discussion. He recounted an experience he had with a dying patient and concluded that physicians should always try to provide the treatment that's desired. CHAIR FRENCH asked if he supported the bill. DR. RHYNEER replied the intent is very admirable, but there may be better ways of doing it. 2:48:58 PM RANDALL MCGREGGOR, MD., chief medical officer, Fairbanks Memorial Hospital, Fairbanks, AK, stated that he was testifying on his own behalf and represents the views of the hospital. He stated opposition to the bill because it could compel a physician to place or revoke an order that could lead to inappropriate care or cause harm. He agreed with Dr. Rhyneer that CPR is only done when a patient dies naturally and that only 17 percent of those patients who receive CPR in the hospital survive to leave the hospital. He agreed that end-of- life decisions should be made with the patient, the family, and the physicians. If end-of-life decisions are not made, physicians are ethically and morally bound to err on the side of preserving life. DR. MCGREGGOR emphasized that a DNR order does not mean that life sustaining measures or comfort care will be withdrawn. It simply allows for a natural death. He concluded that the patient should be able to make that decision, but it's the wrong approach to compel a physician to perform CPR when it is not consistent with medical standards of practice. 2:52:20 PM RYAN MCGHAN, MD., representing himself, Anchorage, AK, stated opposition to SB 172. He described how DNR decisions are typically made and what the patient, the family, and the physicians bring to the table. The patient and family bring expertise in the patient and their values, and the providers bring their medical expertise. He said it's the physicians' job to honor the wishes of the patient whenever possible, and all parties generally come to agreement. With any medical intervention the potential benefits must be weighed against the potential harms. Regarding this particular case, he said it is not reasonable to compel a physician against their conscience to provide care that won't help the patient. It will make it even more difficult to care for critically ill patients if physicians are forced to provide care that only has potential to cause harm with no reasonable prospect of benefit. 2:56:01 PM DONNA STEPHENS, representing herself, Anchorage, AK, said she was an RN and the executive director for Hospice of Anchorage. She said she's learned that most people fear what they don't know and most Americans avoid learning about death. When faced with a life-threatening crisis, most people don't know their choices or what is legal or ethical. Everyone she meets is committed to doing the right thing, but they don't know what that is. They are overwhelmed with emotional pain and fearing loss. Doctors and hospitals are asked to stop death, but when it's biologically impossible and the physicians are brave enough and take the time to tell the patient and family that, many people react with more fear, more pain, and sometimes with anger. The bill won't solve these problems, it will create more. Because there isn't one right way to die, the solution is for each person to learn the benefits and burdens of the common choices and legal and ethical issues that guide at the end of life. Each person should also talk to their loved ones about their wishes. She suggested convening a coalition to figure out respectful ways of dialoging about what an individual uniquely wants for the end of life. The bill attempts to honor the choices of the individual for care at the end of life, but it likely will make it more difficult. She concluded that it's time to get on with the important work of helping people learn to talk about dying before they're in crisis. 3:01:18 PM BRIAN TALBOTT-CLARK, representing himself, said he was a master- level social worker with Hospice of Anchorage testifying in opposition to SB 172. People don't like to talk or think about death until they have no choice, and physicians are no exception. The real problem has nothing to do with the subject of this bill. The real problem is one of understanding and communication about end-of-life issues. The bill appears to reflect that lack of understanding and communication. He explained that a DNR order isn't an advance directive; it's a statement of professional judgment that resuscitative measures will not help the patient. This bill basically compels medical professionals to act unprofessional by forcing them to give inappropriate treatment. If the general public were better educated about end-of-life options and more doctors were willing to discuss end-of-life issues with their patients sooner, there would be fewer nasty surprises like the situation that prompted this bill. He concluded that SB 172 takes entirely the wrong approach. 3:04:15 PM RICHARD MANDSAGER, MD., Chief Executive Officer, Providence Alaska Medical Center, Anchorage, AK, relayed that he'd spent the past hour sitting across from Mrs. Mullins thinking about how the hospital failed in communication. If the hospital has more to learn about communication with its patients, it needs to do that, he said. DR. MANDSAGER said he was testifying against the bill. It makes a fundamental change to the current statute and would require a physician to provide some treatment that is deemed futile. Journal articles that address this ethical and legal dilemma are concluding that the current Alaska statutes strike about the right balance. He urged the committee to hold SB 172. CHAIR FRENCH closed public testimony and announced he would hold SB 172 in committee. SB 198-POLICE OFFICER PROTECTIONS/CERTIFICATION 3:06:27 PM CHAIR FRENCH announced the consideration of SB 198. [CSSB 198(STA), labeled 27-LS1306\D, was before the committee.] 3:06:32 PM SENATOR BILL WIELECHOWSKI, sponsor of SB 198, said this bill puts some protections in place for police officers. 3:08:05 PM CRIS GIFFORD, Patrol Sergeant, Juneau Police Department and Municipal President, Public Safety Employees Association (PSEA), stated support for SB 198. He said that while it may sometimes be necessary for the Alaska Police Standards Council (APSC) to revoke a law enforcement certificate, the employee facing the discipline should have the right to have his/her certificate suspended pending a decision to terminate. This would keep the disciplined officer from practicing law enforcement but still afford him/her the right to be heard before the court. SB 198 allows police organizations to continue to use the polygraph in a pre-employment selection process. What the bill does change is that it allows an officer to decline to take a polygraph in the event of an administrative investigation of possible wrongdoing. This affords police officers the same right that other Alaska citizens enjoy. Finally, the bill would require law enforcement agencies to obtain an employee's consent before releasing his/her personal information to the public. This is important because the department may be unaware of threats made to specific officers during the course of their employment. He recounted a personal experience. 3:11:26 PM CHAIR FRENCH announced he would hold SB 198 in committee. 3:11:54 PM There being no further business to come before the committee, Chair French adjourned the meeting at 3:11 p.m.