Legislature(2011 - 2012)BELTZ 105 (TSBldg)
03/19/2012 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB172 | |
| SB198 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 172 | TELECONFERENCED | |
| + | SB 198 | TELECONFERENCED | |
| + | TELECONFERENCED |
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.