Legislature(2003 - 2004)
04/14/2004 01:41 PM Senate HES
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 25-HEALTHCARE SERVICES DIRECTIVES
The committee took up CSHB 25(JUD).
SENATOR GREEN moved version B [labeled 23-LS0137\B, Bannister,
4/6/04] as the working document.
CHAIR DYSON asked if there was any objection. Seeing and
hearing none, it was so ordered.
REPRESENTATIVE BRUCE WEYHRAUCH said he wanted the record to
reflect that he has worked with every possible interest on this
bill, in good faith, and it is a very passionate, emotional, and
very important bill. The Legislature must deal in a public
policy arena with a broad spectrum of interests. He they have
worked to ensure that one religion or another could not claim
the bill. There is a higher duty to cross those gulfs if they
exist.
CHAIR DYSON said Representative Weyhrauch preferred to take
public testimony before addressing the amendments, which was
fine with him. He informed members that he did not intend to
pass the bill out of committee today.
MS. MARIE HELM of Christian Science Churches of Alaska testified
via teleconference to reiterate the concerns she expressed at
the April 7 meeting. She referred to version B, page 10, line
12 that speaks to transferring the patient. She asked that it
clarify where the patient is being transferred because it's
important that home be an accepted transfer point.
SENATOR GUESS noted that there is a significant difference
between Versions B and V and then suggested to Chair Dyson and
Representative Weyhrauch that this issue might be covered in
Section G. Representative Weyhrauch acknowledged her point.
MS. CAROLE EDWARDS, Alaska Nurses Association (ANA), said she
testified on this bill many times before, mostly about the
issues of pain and artificial fluid and nutrition. She said
today she wanted to testify on the issue of pregnancy. She said
she checked with a woman in her early 30s who is 8.5 months
pregnant with her first child, and who has advance directives
filled out. Upon being asked how she would feel about having
her unborn child kept alive if something terrible happened to
her, she said absolutely she would want this child kept alive.
Ms. Edwards then asked her "if there were a statute that didn't
provide for this, would you be hesitant to fill out advance
directives?" She said yes she would. In fact she would rescind
them if she thought that anything would happen to her in the
next few weeks. Ms. Edwards pointed out that not including life
support for pregnant women might deter young women from filling
out their advance directives.
SENATOR GUESS said she didn't understand.
CHAIR DYSON explained that a person might fill out an advance
directive indicating that "If I am irreversibly damaged and
going to die and I'm comatose, withdraw the life support." If
this person subsequently becomes pregnant and didn't think about
rescinding that portion of the directive, she could get into the
situation whereby her desire that the child live past her might
not be fulfilled.
SENATOR GUESS expressed concern that someone could have a health
directive that deals with pregnancy, and that directive could be
over-turned by this statute. For example, if she directed that
her husband make decisions, he should make those difficult
decisions; "we shouldn't be over-turning a stated health care
directive."
MS. EDWARDS asked if the statement "if I should become pregnant
I would want to be kept alive for my child to be born" or
something to that effect should be included.
SENATOR GUESS said that if pregnancy is included in this bill,
it should be part of the health care directive or people won't
know to address it. She also strongly suggested that if it is
in the health care directive, "then we go by the health care
directive. If there's not a health care directive, then we
revert back to the statute. If there's a health care directive,
I'm not sure why - and this is the only situation where we're
trumping it - if the directive actually deals with pregnancy."
CHAIR DYSON said, "And we will get to that later on in the
discussion. And it will be my perspective that if there's a
child there that we ought to do everything we can to preserve it
and the state's interest in protecting that life trumps a
directive. That's something we will disagree on, and we'll see
how the committee feels."
MR. JIM CARROLL, representing Juneau retired teachers, referred
to his own family situation and expressed support for HB 25,
both personally and from having talked with other teachers.
MS. MARIE DARLIN, representing the Capital City Task Force of
AARP Alaska, urged passage of this bill. She said it should be
possible to get the bill through the Legislature this year since
there's been four years of work put into it.
MS. EMILY NENON, Alaska advocacy manager for the American Cancer
Society (ACS), emphasized that the legislation is critical to
ensure that people's rights to be treated as intended are
followed. In looking at the purpose and intent of version B,
what caught ACS's attention in particular was the language, "It
is the intent of this Act to establish the right of a patient to
control the patient's own health care decisions." She said that
ACS feels very strongly about that. Regarding the pregnancy
issue - and she acknowledged that this would be addressed in the
amendments - it was her hope and ACS's intention that people be
able to make those decisions. If there is an advance health
care directive, that "you be able to make what decisions you can
in advance, but there are always going to be situations that
we're not going to be able to perceive, and we feel very
strongly that whoever is acting on behalf of a patient, if they
are not able to act on their own behalf, be able to make those
decisions as necessary, when things come up."
MS. NENON referred to the second stated intent of the Act on
page 2, to "create, in the absence of evidence to the contrary,
a presumption that the patient intends to be kept alive," which
will cover people without advance health care directives. For
people with advance health care directives, the desire is to
ensure that they can decide what they want and, in their
absence, that their loved ones and health care providers can
make those decisions. She cautioned the committee to not
legislate a line too fine to deal with situations as they come
up. She mentioned her personal feelings due to her father whose
living will was ignored three times over a number of years as he
was dying from Parkinson's disease. Information was not properly
transferred, and once a doctor did not acknowledge it. Statutes
were not in place to clarify what it means to have an advance
directive and living will.
SENATOR GREEN referred to her statement, "to keep it flexible
enough" and asked if she had a particular word, line, or phrase
in mind.
MS. NENON said she did not have an easy answer, and was
interested in what was going on with the amendments. She
commended Senator Guess's suggestion regarding including
pregnancy as part of the advance directive form. She said she
wanted to make sure that if somebody has an advance directive,
or if they haven't addressed that specifically, that whoever is
acting on their behalf is able to make those decisions. She
said she wasn't a medical professional and the ACS doesn't get
involved with the differences between being 1 week pregnant
versus being 8 months pregnant, as those are very different
situations and the medical care involved is very different. She
reiterated that she wanted to make it clear that patients can
make decisions about their health care and, if they can't, then
their medical professionals and family can. She said the answer
to the question was no.
SENATOR GREEN asked if the phrase "flexible enough" referred to
the first paragraph at the top of page 2 or to the entire bill.
MS. NENON said, "I was saying that at the top of page two, that
seemed pretty clear to me, that if you don't have an advance
directive...
TAPE 04-21, SIDE B
MS. NENON continued, "you've got this presumption and if you
don't have somebody acting on your behalf, that's the fall-back
position. But if we do have people acting on the patient's
behalf, they need to be able to make those decisions."
SENATOR GREEN repeated that she wanted to clarify that Ms.
Nenon's comment about flexibility referred to the entire
process.
MS. NENON referred to the section on pregnancy on page 8, and to
the importance of making sure that there's an opportunity for
the people acting on behalf of a woman who's not able to act on
her own behalf to make decisions as deemed necessary.
CHAIR DYSON said he inferred from Ms. Nenon's comments that in
the example of a husband of a comatose and dying wife, the
desire would be for him to be able to make the decision to pull
the plug on her life support even if that meant the death of the
child that she wanted, the child that she hadn't chosen to
abort.
MS. NENON said she understood what he was saying but "we're
getting into dicey waters no matter which way you go on this."
ACS's baseline position is stated in (1), under the Purpose and
Intent, to "establish the right of a patient to control the
patient's own health care decisions."
CHAIR DYSON said, "And by inference to allow their agent to do
that if they're incapacitated." He said as he reads this
legislation as it now stands, if there is an unborn child, the
presumption is to preserve the life of that child and give it a
chance to live.
MS. NENON said ACS does not have a position on abortion.
CHAIR DYSON said, "Abortion does not come into this. This is a
wanted child. Do you want a third party to be able to make the
decision to not give that child a chance to develop to the point
that it can live outside the womb?"
MS. NENON said the statute was broad, and more clarity is needed
to address situations involving different requirements when
delivering a baby of a woman who is 39 weeks [pregnant] who was
in a car accident versus a person who is 2 weeks pregnant
regarding what might be required to sustain her life over that
period of time. She said that's the distinction she makes in
her mind, and the ACS goes back to "the patient should be able
to control the patient's own health care decisions."
CHAIR DYSON mentioned sustaining that woman's physical life for
another 25 weeks to give that child a chance to survive....
MS. NENON said she believes that decision should be made in
conjunction with family members and medical professionals
because of not knowing exactly what the situation will be.
CHAIR DYSON asked if this was ACS's position.
MS. NENON answered that ACS's position is the patient should be
able to control his/her own health care decisions.
MR. SAM TRIVETTE, President of Retired Public Employees of
Alaska, testified that the bill is much needed, and referred to
his own parents dealing with end-of-life issues in the mid-
1990s. There was not an "advance directives bill" at that time.
Fortunately several very caring doctors were able to meet his
parents' wishes without advance directives. Had those caring
physicians not been involved, things would have been a lot more
difficult. He stated that having the bill is good public policy
so that people will understand what's necessary in order to have
advance directives. He said he'd like for this to not be an
issue for his children when he is older. He acknowledged that
Representative Weyhrauch and his staff have worked on this bill
and compromises have been made over the past few years. He
expressed support for the bill and for the amendments.
CHAIR DYSON acknowledged that Representative Weyhrauch and Linda
Sylvester have done wonderful work.
MR. RAY VIDIC stated he was in favor of the bill and said he was
testifying on behalf of the hundreds of people living in Alaska
who can't be here because they need an organ, or for other
health reasons. He shared a story about a friend who is the
reason he is passionate about the importance of passing this
bill. In the 10 years that his friend has been on dialysis, he
has undergone self-dialysis 1,500 times and it has weakened his
entire body. In the last two months when he was in Anchorage,
he was bleeding rectally and needed a colonoscopy. Because his
tissues were so weak, they poked through his intestine and he
had to have surgery. Three weeks later he was healed and on his
way home when his stitches broke from his breastbone to below
his belly button, and he was back in the hospital again. He had
an ileostomy and was back in Juneau; it was a mixed blessing
because he didn't have to worry about some of the chemicals that
he ingested because he didn't have an operable colon. "This
gentleman is a warrior and he puts on his armor every day. Your
legislation has the power to impact, not only my friend, but
there are literally - and his direct circle of life, his family,
his mother, father, brothers, cousins, uncles, aunts, friends -
you have the opportunity through your decisions, he will receive
a kidney, and he will have a new lease on life." Imagine that
for one person who donates his/her body, there are 50 people who
can benefit from that tissue and those organs, but that life
touches many more; one donation impacts 1,000 people. He
encouraged passage of HB 25.
CHAIR DYSON confirmed that this bill goes a long way to empower
and enable organ transplants.
CHAIR DYSON moved Amendment 1 for purposes of discussion.
SENATOR GUESS objected.
MS. LINDA SYLVESTER, Staff to Representative Weyhrauch,
explained the following [conceptual] amendments [in revised
format, with corrected page numbers]:
(Conceptual) Amendment No. 1
13.52.000 To the uncodified law
Page 2, Lines 1 - 4
DELETE all.
Page 2, Line 1
INSERT:
(2) create, in the absence of evidence to the
contrary, a presumption in favor of life, consistent
with the best interest of the patient.
(3) this Act is not intended to condone, authorize, or
approve mercy killing, assisted suicide, or
euthanasia.
Amendment No. 2
13.52.010 Advance health care directives
Page 4, line 14
Delete: "if it complies with chapter."
INSERT: "to the extent that it complies with Alaska law."
Amendment No. 3
New Section Withholding or withdrawing of life-sustaining
procedures.
Page 4, Lines 4-7
Delete all.
Page 7, Lines 10-13
Delete all.
Page 8, following Line 8
INSERT: Withholding or withdrawing of life-sustaining
procedures.
(a) Notwithstanding any other provision of this
chapter, an agent or surrogate may determine that life-
sustaining procedures may be withheld or withdrawn from a
patient with a qualifying condition when there is:
(1) a durable power of attorney or other writing
that clearly expresses the patient's intent
that the procedures be withheld or withdrawn;
or
(2) no durable power of attorney or other writing
that clearly expresses the patient's intent to
the contrary, the patient has a qualifying
condition as determined under AS 13.52.160, and
withholding or withdrawing the procedures would
be consistent with the patient's best interest.
Amendment No. 4
13.52.045 Decisions for exceptional procedures
Page 8, line 15
Delete: "physical"
Amendment No. 5
13.52.050 Pregnancy
Page 8, line 24
Delete: "health care"
INSERT: "life-sustaining procedures"
Page 8, line 25
Delete: "the health care"
INSERT: "life-sustaining procedures"
Page 8, line 28
Delete: "the health care"
INSERT: "life-sustaining procedures"
Amendment No. 6
New section: Construction where mental illness.
Insert a new section to read:
In the case of mental illness, nothing in this chapter may
be construed to override or undermine the validity of a
properly executed durable power of attorney.
Amendment No. 7a
13.52.300 Optional form
Page 30, Line 26
Delete all.
INSERT: I direct that adequate treatment be provided
at all times for the sole purpose of the
alleviation of pain or discomfort;
Amendment No. 7b
13.52.300 Optional form
Page 30, following line 30,
INSERT: "Should I become unconscious and I am pregnant, I
direct that
Amendment No. 8
Definition section.
We recommend a modified definition to "terminal condition" and
we would then support the two circumstances for a qualified
condition (permanent unconsciousness & terminal condition)
rather than the three circumstances originally listed in version
B (permanent unconsciousness, terminal condition and incurable
or irreversible condition). Essentially, we have melded
components of incurable or irreversible condition into terminal
condition.
(35) "qualifying condition" means a terminal condition or
permanent unconsciousness in a patient.
Terminal condition becomes its own definition rather than a
component of "qualifying condition"
Terminal condition: a new definition is added to the Definition
section:
( ) Terminal condition means an incurable or
irreversible illness or injury that without administration
of life sustaining procedures will result in death in a
short period of time; for which there is no reasonable
prospect of cure or recovery; that imposes severe pain or
otherwise imposes an inhumane burden on the patient; and
for which initiating or continuing life-sustaining
procedures in light of the patient's medical condition,
provides only minimal medical benefit.
Life-sustaining procedures is amended by adding a new phrase
(underlined in body of the definition).
(27) Life-sustaining procedures means any medical
treatment, procedure, or intervention that, in the judgment
of the primary physician, when applied to a patient with a
qualifying condition, would not be effective to remove the
qualifying condition, would serve only to prolong the dying
process, or, when administered to a patient with a
condition of permanent unconsciousness, may keep the
patient alive but is not expected to restore consciousness;
in this paragraph, "medical treatment, procedure or
intervention" includes assisted ventilation, renal
dialysis, surgical procedures, blood transfusions, and the
administration of drugs, including antibiotics, or
artificial hydration and nutrition."
MS. SYLVESTER explained that in Amendment 1, the language in
"(2)" covers the balancing act. Once the decision-maker is on
the scene, that person will be making those decisions, always
considering the best interests of the patient. That means that
the burdens of a health care decision are weighed against the
benefits. She confirmed that "(3)" states that the intent is
not to condone mercy killing, assisted suicide, or euthanasia.
REPRESENTATIVE WEYHRAUCH referred to Ms. Nenon's concept of a
"fine line" as being important to keep in mind because of there
being so many possible situations. He reminded members that in
talking about policy determination, ultimately it's the patient,
their agent, family, and the physicians who have to make these
decisions, and they are made on a case-by-case basis. It's
impossible to dictate in statute what to do or not do in these
emotional, medical, personal, family, and social situations.
It's inappropriate to have to look for legislative intent while
dealing with somebody in a critical care unit, at home, or in
hospice.
SENATOR GUESS read from [page 2, line 2], "until given the
opportunity to make health care decisions directly or through an
agent, a surrogate, or a guardian" and asked, given that
everything goes back to best interest of the patient, why was
this being deleted?
MS. SYLVESTER explained that Amendment 1 is a compromise. She
said imagine a situation in which someone comes in after an
accident; the presumption is that the patient wants to be kept
alive, we err on the side of life. Current medical practice
does not wait around to discover what the patient wanted.
Action is taken to stabilize the patient. After that, data is
gathered about the patient's physical condition, the prognosis,
and the patient's health. A decision-maker comes to the scene.
The concern is that this language would put the presumption in
favor of life over the patient's individual decision-making.
That was a concern in the Nancy Cruzan case, for example. The
reason the guardian kept pushing the case further was because
Missouri had a presumption in favor of life that was so strong
in the living will statute, that her dire, desperate, physical
condition was not enough to trump that presumption in favor of
life. Having said that, the individual analysis that will occur
during the best interest - making a decision as to what's in the
best interest of this patient - envisions decision-making by
others (medical, family, or loved ones).
SENATOR GUESS said the way it currently reads, best interest
trumps the decision of an agent, surrogate, or guardian. She
said she might be someone who says:
You better do everything that you can do, and my
husband gets to the emergency room, and the people
say, 'well it's best interest' which is kind of this
cost-benefit, all this other stuff, and I as the agent
or the spouse don't get to make that decision because
this is saying that the best interest trumps versus
the agent, and the best interest is clear but it's not
clear. They're great guidelines, it's well-written,
but you can have it switch the other way and not be
too heavy in the presumption of life but actually take
away someone who wanted that strong presumption of
life. Am I correct?
MS. SYLVESTER said this amendment was offered by Chair Dyson
and, from Representative Weyhrauch's point of view, the original
language was preferable, but it's negotiable, as there were
other battles that they felt more strongly about.
SENATOR GUESS said to Chair Dyson, there's an unintended
consequence here and wondered if that was what he was intending.
CHAIR DYSON said he thought it was. He asked if somebody could
speak to what goes into the best interest determination for a
patient.
2:52 p.m.
DR. MARIA WALLINGTON, medical ethicist at Providence Alaska
Medical Center, testified via teleconference, saying that the
decision needs to be made between physicians who can offer
information regarding the realities of the medical situation and
the family, who knows that patient's values. She referred to
page 37, noting that at the end of the list under what's
included in the definition of "best interest" is: "(G) the
religious beliefs and basic values of the individual receiving
treatment." She said at the time the best interest is being
determined, one wants to include all of the medical realities
and information about the patient, which is provided by the
surrogate. She said she didn't think that taking it out adds
anything and that keeping it in makes it clearer, saying that
she agrees with Senator Guess on this point. She said she was
not willing to fight for it because in the rest of the bill, the
way surrogates have been set up along with the definition of
best interest recaptures that part.
CHAIR DYSON said that in the absence of evidence to the
contrary, like an advance directive, the presumption is to
preserve life, consistent with the best interest. People go
through this "best interest" list to do the best they can in the
absence of an advance directive, or evidence to the contrary, to
decide what's best for that patient.
SENATOR GUESS said she wouldn't maintain her objection, but said
it needs to be re-thought. She referenced page 38, line 4, and
said that "religious beliefs and basic values" could be trumped
by the medical situation. With making that point, she withdrew
her objection.
CHAIR DYSON announced Amendment 1 was adopted.
CHAIR DYSON moved Amendment 2.
MS. SYLVESTER explained that there is concern with states
adopting statutes that offend the sensibility of other states.
Alaska, among other states, is re-thinking reciprocity.
SENATOR GUESS noted that the correct page number for Amendment 2
is page 4, line 14 [rather than page 5, line 7].
MS. SYLVESTER continued by explaining that it is important that
Alaska honor advance directives, living wills, and anatomical
gift donations signed by people from out of state. If someone
is visiting Alaska, those directives need to be honored to the
extent that they comply with Alaska law. If, for example,
someone is from Oregon, which authorizes assisted suicide, the
desire is to make it clear that those wishes won't be carried
out in Alaska because it doesn't comply with Alaska law.
CHAIR DYSON asked if a similar change needed to be made to page
12, lines 26 - 27.
MS. SYLVESTER responded no, that it has been corrected regarding
anatomical gifts and the "do not resuscitate" orders.
CHAIR DYSON confirmed that she had just said that page 12, lines
26 - 27, version B was fine as is. He then asked if the
language was also fine on page 22, lines 18 - 20.
MS. SYLVESTER said that is correct, and explained that the
language on page 22 describes the exemption from liability for
the anatomical gift, and says that with regard to a physician or
Life Alaska acting on someone's anatomical gift donation made in
another state, the desire is to prevent liability for acting on
that.
CHAIR DYSON acknowledged that there was no objection to
Amendment 2. He moved that Amendment 2 be amended to correct
the page number of page 4, 1ine 14. He then asked if there was
any further objection. There being none, Amendment 2 was
adopted.
CHAIR DYSON then asked Ms. Sylvester to address Amendment 3.
MS. SYLVESTER said this was a substantive change and explained
[using herself as an example] that regarding health care
decisions, she makes them for herself because she's a thinking
person who's awake; she's not unconscious. If she became
unconscious and lost capacity, someone else would make those
decisions. If she filled out an advance health care directive,
then she'd have an agent (name somebody). If she were part of
the 90 percent of the population who have never filled out an
advance directive, then HB 25 creates a new group of people
called health care surrogates. This would be her husband, for
example, or if he was not available, her mother (someone close,
who would know of her wishes). Those people are making health
care decisions.
MS. SYLVESTER continued that if, for example she were
unconscious and needed to have her leg fixed after a car
accident - it could be trivial decisions that need to be made
until regaining capacity - but these people may also find
themselves in circumstances in which they're making decisions to
withdraw or withhold life support. It's in the interest of the
state to put some parameters around that decision-making
process. Withdrawing life support is not the same as consenting
to have a spleen removed, for example. For her husband to make
those decisions, she has to have a qualifying condition. She
has to be in a persistent vegetative state, for example, or be
terminally ill, unconscious, in the advance stages of cancer and
dying, if someone is going to decide to withhold or withdraw
artificial hydration, or just let her die. That's an example of
those parameters.
MS. SYLVESTER said the agent and surrogate are dealt with
separately in version B. Chair Dyson wanted to highlight the
importance of this by giving the withholding or withdrawing of
life-sustaining procedures a separate section. Ms. Sylvester
referenced the suggested changes included in Amendment 3. She
explained that these changes eliminate from the equation a
husband who gets into a serious motorcycle accident or a burn
victim who is burned but will recover - those people would not
have a qualifying condition - so therefore it would be
inappropriate and not allowed under this law to withhold or
withdraw life-sustaining procedures. That's how to ensure that
Alaska is not allowing euthanasia or mercy killing or anything
like assisted suicide.
CHAIR DYSON moved Amendment 3.
DR. WALLINGTON pointed out that the correct reference is page 7,
lines 10-13 [rather than lines 4-9].
MS. SYLVESTER suggested that these be considered as conceptual
amendments [because of the reference modifications].
CHAIR DYSON then moved conceptual Amendment 3.
SENATOR GREEN asked if the new section being added to Amendment
3 was the first mention of "durable power of attorney" or if it
occurred throughout the bill.
MS. SYLVESTER said regarding consistency, it started out with a
living person, anticipating, "I'm an individual" and when an
advance directive is filled out, "I'm a principal" but later on,
the same person (me, as the individual with the advance
directive), may become a patient, so it tracks accordingly.
REPRESENTATIVE WEYHRAUCH clarified that the question was where,
in the bill, the terminology appears.
SENATOR GREEN said she wanted to be sure it was consistent, as
she doesn't remember seeing it that often.
CHAIR DYSON then announced and apologized that SB 376 would not
be heard that day.
CHAIR DYSON asked if there was any objection to Amendment 3 as
amended.
DR. WALLINGTON said she wanted to comment on the terminology,
noting that most of the bill uses "health care agent" rather
than "durable power of attorney."
MS. SYLVESTER responded that regarding this issue she needs to
look through the bill for conformity because various people have
given input at various stages.
CHAIR DYSON said seeing and hearing no objection to Amendment 3,
Amendment 3 is adopted.
CHAIR DYSON moved Amendment 4.
SENATOR GUESS objected and noted that the correct page reference
is page 8, line 15.
MS. SYLVESTER explained that this amendment deals with a
protection that comes from the guardianship statute, and is
important to folks with mental illness. Unless there is a
durable power of attorney for health care or another written
document clearly expressing an individual's intent to the
contrary, an agent or surrogate may not consent on behalf of the
patient to an abortion, sterilization, psychosurgery, or removal
of bodily organs except when the abortion, sterilization,
psychosurgery, or removal of bodily organs is necessary to
preserve the life of the patient or to prevent serious
impairment to the health of the patient. If someone is mentally
ill, sterilization was formerly a standard order. If it's
necessary to prevent harm to the patient's physical health, then
there's an option. Because psychosurgery deals with mental
health, the word "physical" needs to be deleted.
CHAIR DYSON asked if the objection was maintained.
SENATOR GUESS said no.
CHAIR DYSON announced that with the withdrawal of the objection,
Amendment 4 was adopted.
3:15 p.m.
CHAIR DYSON moved Amendment 5.
SENATOR GREEN objected for purposes of discussion, and pointed
out that the correct page number is page 8 rather than 9.
MS. SYLVESTER explained that this section comes from current
statute, and it is the "do not resuscitate orders (DNR)" and the
living will statute. It is one of the statutes being repealed
and re-implemented in HB 25. She said this was expanded to
include advance health care directives, but because it created
confusion, we're essentially backing-up. Before implementing a
health care decision for a woman of childbearing age that would
affect a fetus, if present, the supervising health care provider
shall take reasonable steps to determine whether a woman is
pregnant. That is standard practice and is not new, as women of
this age are routinely checked for pregnancy.
MS. SYLVESTER referred to "(b) Notwithstanding any other
provision of this chapter to the contrary, an advance health
care directive by a patient or a decision by the person then
authorized to make health care decisions for a patient may not
be given effect if" certain conditions are present. The patient
is a woman who is pregnant and is unconscious, lacks capacity,
and most typically she will be unconscious. The directive is a
decision to withhold or withdraw health care but what it really
meant is life-sustaining measures. We don't mean health care,
for we don't mean to imply that if a woman is in a car accident
and is going to recover, but the treatment is going to harm the
fetus, the implication is not to put the life of the fetus ahead
of the life of the mother. Amendment 4 removes health care and
puts in life-sustaining procedures.
MS. SYLVESTER continued that the withdrawal or withholding of
health care - and health care needs to be changed to life-
sustaining procedures - would, in reasonable medical judgment,
be likely to result in the death of the patient. It's clear
from reading this that the woman is dying or is near death. It
could be a DNR, she could have already died and they
resuscitated her. The last condition to be met is that it is
probable that the fetus could develop to the point of live
birth, if life-sustaining procedures were provided. This
section of the bill is worded flexibly so that it allows for
discussion and decision-making, but the probability is that the
fetus could develop to the point of live birth. If the woman is
eight months pregnant, it's probable. If the mother is dying,
the removal of life support is stayed, to give the fetus the
opportunity to live. This is standard practice. In some cases,
doctors consider whether there are one or two patients.
CHAIR DYSON clarified that conceptual Amendment 5 deletes
"health care" and inserts "life-sustaining procedures" on page
8, line 24; page 8, line 25; and page 8, line 28.
CHAIR DYSON asked if there was any objection. Seeing none,
Amendment 5 was adopted.
CHAIR DYSON moved Amendment 6.
MS. SYLVESTER said this was first proposed by the Disability Law
Center and was incorporated into the working draft, version X.
She said that in the case of mental illness, nothing in this
chapter overrides or undermines the validity of a properly
executed durable power of attorney. The real world scenario
that the Disability Law Center is concerned about is that
someone who is in API loses capacity or is incompetent.
CHAIR DYSON asked if there was any objection.
SENATOR GREEN asked about the amendment's location on page 13,
line 29.
MS. SYLVESTER said the drafter could put it anywhere.
SENATOR GREEN said it is currently located between (a) and (b),
and wondered if this was desired.
MS. SYLVESTER said this could be considered as a conceptual
amendment and could go wherever the drafter would like to find a
space for it.
CHAIR DYSON agreed that it could go where the drafter feels it
is most appropriate. He asked if there was any objection.
There being none, Amendment 6 was adopted.
CHAIR DYSON moved conceptual Amendment 7.
SENATOR DAVIS objected.
MS. SYLVESTER said there were a couple of suggested changes to
the optional form. There was discussion about the actual
wording in [Relief from Pain], with the concern that someone not
be thinking about terminating life with pain relief, countered
with not lecturing to the patient or creating confusion about
pain medication. What was arrived at, which is a nice
compromise, is "I direct that adequate treatment be provided at
all times for the sole purpose of the alleviation of pain or
discomfort;".
TAPE 04-22, SIDE A
SENATOR GREEN asked if "or" was being omitted, to be followed by
instructions.
MS. SYLVESTER referred to page 30, line 25 of version B, and
said that Relief from Pain, lines 26 - 28, were being taken out.
REPRESENTATIVE WEYHRAUCH noted that "or" stays in.
CHAIR DYSON confirmed the new language would be on page 30, line
26, and asked if the desire is to expand Amendment 7.
MS. SYLVESTER confirmed something should be included in the
Optional form, after Relief from Pain. She explained this would
be a conceptual amendment and would still need to be worked out
with Senator Guess, Chair Dyson, and Doctor Wallington. This
would provide an option to discuss a person's attitudes and
directives regarding the situation of pregnancy.
CHAIR DYSON asked for Amendment 7 to be adopted.
SENATOR WILKEN suggested that this be called Amendment 7a, and
the other, Amendment 7b.
CHAIR DYSON announced that Amendment 7a was adopted.
MS. SYLVESTER said the language for Amendment 7b would
essentially be, "Should I become unconscious and I am pregnant,
I direct that" and would be followed on page 31, by Other
Wishes.
SENATOR DAVIS moved conceptual Amendment 7b.
CHAIR DYSON objected, and asked Ms. Sylvester to review the
amendment.
MS. SYLVESTER said it would come after [Relief from Pain] and
before Other Wishes. The idea is that the form is designed to
have people encounter or confront these decisions. For example,
one concern expressed to me was, "If I'm in a situation where
it's my life or my child, I want my child's life to come before
my own." This would provide an opportunity for someone to state
those wishes. They could be stated in other wishes, but without
having an option for pregnancy, it might not occur to the person
who is filling out the form. The idea is not to trump the
presumption in favor of life, or what we worked on in pregnancy.
Senator Guess has her concerns, but it was actually suggested
for people who want to be clear that they want their child's
life to come before their own.
SENATOR WILKEN asked if 7b would insert paragraph (E) on page
30.
MS. SYLVESTER said she thought it would become a new "(7)."
SENATOR WILKEN asked if Other Wishes would become "(8)."
MS. SYLVESTER replied correct.
SENATOR GUESS asked if the objection was maintained. She stated
for the record that she has issues with the pregnancy section
because it overturns the health care directive. Regardless if
it is included or not, she said she thought it was extremely
important to have it in the health care directive so that those
conversations happen. Most likely, most people will make the
decision to do everything possible to save the child, but if
that's not in the health care directive, you get into some
fairly murky water. It might be better to deal with pregnancy
in best interests, but it's not addressed in best interests.
She said it doesn't hurt to prompt people to have those
conversations, since "not everyone gets to sit in committee
rooms and know that they should have them."
DR. WALLINGTON said she supports this, and the major value of
putting an optional form into the law itself is that it will
prompt people to think about important decisions.
MS. SYLVESTER re-stated the proposed conceptual Amendment 7b for
clarification.
CHAIR DYSON removed his objection.
CHAIR DYSON asked if there was further objection. Seeing none,
conceptual Amendment 7b was adopted.
CHAIR DYSON moved to adopt Amendment 8.
SENATOR WILKEN objected.
MS. SYLVESTER explained that version B discusses three
qualifying conditions. These are situations in which the
decision-maker may consider withholding or withdrawing life-
sustaining procedures. One of the conditions is a state of
permanent unconsciousness. The other is a terminal condition,
and the third, an incurable or irreversible condition. We've
merged terminal condition and incurable condition and called
this terminal condition. That was a compromise that was worked
out with Chip Wagoner from [Alaska Catholic Conference], and is
supported by Dr. Wallington as well. Regarding "life-sustaining
procedures" Chair Dyson's language that appeared in version X
has been adopted into the definition. The definition section
deals with three definitions: qualifying condition, terminal
condition, and life-sustaining procedures. She noted that this
could be considered as a conceptual amendment.
CHAIR DYSON asked if the objection was maintained.
SENATOR WILKEN said no.
CHAIR DYSON announced that Amendment 8 was accepted.
MS. SYLVESTER asked for leeway from the committee so that the
bill could be reviewed for inconsistencies, brought to the
drafter's attention and fixed. [The request was treated as
accepted.]
CHAIR DYSON noted for the record that there was a slight
question about judicial relief on page 15, and the definition of
cardiopulmonary resuscitation on pages 10 and 11.
SENATOR GUESS asked, for the record, if there would be time to
work through some issues with Ms. Sylvester.
CHAIR DYSON responded in the affirmative.
SENATOR WILKEN asked about passage of HCR 31, and received
confirmation that this had passed out of committee.
CSHB 25(JUD) was held in committee.
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