Legislature(1997 - 1998)
02/25/1998 01:35 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 291 - LIV. WILLS/ANATOMICAL GIFTS/PATIENT CARE
MR. RALPH BENNETT, staff to Senator Robin Taylor, presented SB 291
as a major revision to Alaska Statute title 18, chapter 12
regarding rights of the terminally ill. MR. BENNETT said this bill
is intended to offer Alaskans some assurance that their wishes will
be carried out with regard to medical treatment and life sustaining
procedures. He said that last year in the course of hearing a bill
on organ and tissue donation, it became clear to the Legislature
that many incapacitated persons are not having their wishes carried
out. MR. BENNETT stated that current law makes a living will
operable only when a patient is declared terminal. This is a
diagnosis many doctors are reluctant to make.
MR. BENNETT cited a 1995 study that found doctors still
misunderstand or ignore patients' requests with the result that
large numbers of people still die alone, in pain, and tethered to
machines. MR. BENNETT said this law explicitly gives each and every
competent adult the right to make fundamental decisions regarding
his or her medical treatment, including the right to prepare an
advance directive and to accept or refuse treatment.
MR. BENNETT stated that the advance directive is operative only in
the case that the declarant has been medically determined to be in
a serious medical condition. The bill defines "medically
determined" and "serious medical condition". He said an Oregon law
was the model for the bill and provides for personal decisions to
be communicated on a variety of situations. MR. BENNETT explained
that section eight of the bill sets out when life support may be
withdrawn from a person without an advanced directive and section
seven clarifies that nothing in this bill is intended to condone
mercy killing or assisted suicide. MR. BENNETT concluded that this
bill will take Alaska into the 21st century, allowing individuals
to make decisions regarding health care with more assurance that
those wishes will be carried out in the event they are unable to
speak for themselves.
MS. BRIDGETTE CARNEY, a medical ethicist form Oregon, said the bill
closely resembles the Oregon law. She claimed this law is working
well in Oregon, where every patient entering a hospital has the
opportunity to fill out an advance directive. This document can be
filled out individually or with assistance and is helpful in
communicating a patient's wishes, as well as fostering
communication between patients, their doctors and their families.
MS. CARNEY stressed the fact that a patient's verbal wishes always
take precedence over an advance directive, allowing a patient to
change his or her mind while they remain competent.
MS. VIRGINIA PERI testified via teleconference from Anchorage and
said she was the impetus for the bill, after an attempt to file an
Oregon declaration with her attorney, who said it was not
applicable due to the necessity, in Alaska, of being diagnosed as
terminal. MS. PERI indicated that the word terminal is too broad
and needs to be changed. She cited other portions of the Alaska law
that she feels are too vague or otherwise inadequate. She asked
that the committee please accept this bill, which answers all her
questions and takes the state into the 20th century.
MS. DEBORAH RANDALL, an Anchorage attorney, said the bill's sponsor
statement was well written and exactly expresses her wishes. She
noted that the current law does not have the necessary meat on its
bones and is much too broad. She said the Oregon bill was the
product of much thought on the part of its creators and provides a
big step forward for Alaska law. She mentioned that current Alaska
law does not allow the withdrawal of life support by an agent of
the patient and the health care power of attorney provision needs
revision.
SENATOR PARNELL asked MS. RANDALL if she could distinguish this
from assisted suicide legislation. MS. RANDALL replied that the
bill states that is does not condone mercy killing or assisted
suicide. She suggested people read the categories carefully, these
assure assistance to people who do not want to be kept alive, not
those who want help to die. She explained the case that originated
the concept of living wills.
SENATOR PARNELL asked about the term "permanently unconscious" on
page 13, line 4. He gave an example of a friend who had been in a
coma for nine months and later recovered and asked how the law
would interpret this term. MS. RANDALL responded it would require
a complete lack of awareness, confirmed by a neurological opinion,
without a reasonable possibility of a return to consciousness.
SENATOR PARNELL asked if the definition of a reasonable possibility
had ever been litigated in Oregon but MS. RANDALL nor MS. CAREY
were aware of any such case. MS. CAREY did explain that medical
tests for brain activity would be factors in this determination.
She said there is an established time frame in which to withdraw
food and water in the case where a person is in a persistent
vegetative or unconscious state. She remarked also that the
assessment of higher brain functioning or cognitive ability vs.
only autonomic brain stem functioning is important.
MS. RANDALL commented that the declaration breaks out different
circumstances and allows the individual to decide what course of
treatment they would want in different situations. SENATOR PARNELL
said he agrees with the principle but says this leads to assisted
suicide if it's taken a bit further.
CHAIRMAN TAYLOR voiced his belief of the difference between an
affirmative act of putting something in someone as opposed to
withdrawing something and allowing nature to take its course. He
said he has no intention of this bill allowing any hastening of the
natural process.
MS. CARNEY added that this bill applies only to a competent person
who makes their wishes known in advance as to what they would want
should they become incompetent. She stressed it only goes into
effect when they are incompetent. She differentiated assisted
suicide as an act of a physician to intentionally end someone's
life. She said this bill only allows the withholding or withdrawal
of treatment.
DR. TOM BUELLER, Professor of Philosophy at the University of
Alaska Anchorage, concurred with the remarks of MS. CARNEY
regarding the value of individual self-determination. He said this
makes the bill dissimilar to assisted suicide in the regard that it
is based on the notion of the right to refuse unwanted medical
treatment. The advance directive allows incompetent patients to
decide what they specifically want in a broad range of conditions.
DR. BUELLER says this is helpful for doctors.
CHAIRMAN TAYLOR asked DR. BUELLER about changing the term "serious
medical condition" to "qualifying medical condition" and DR.
BUELLER said he believes the term "serious" is more helpful,
although he is not a physician. CHAIRMAN TAYLOR said it may simply
be semantics.
MS. MELBA COOKE, a case manager for Acquired Immune Deficiency
Syndrome (AIDS) patients, indicated that living wills are often
overridden even in cases where the patient clearly had no chance of
recovery. In many of these instances, life support has prolonged
these patients' lives and MS. COOKE called this cruel and unusual.
She recounted losing her husband to AIDS and said, as a widow and
an AIDS advocate, she strongly sees the need for this type of
document.
MR. JENS SAAKVITNE, representing Life Alaska transplant team,
clarified that all fifty states recognize brain death as death and
that it is vastly different from a permanent vegetative or
unconscious state. MR. SAAKVITNE said the transplant teams of
Alaska strongly support this bill, which would make things easier
for families. He said there are a few revisions he would like to
see, including a provision to allow the donation of any needed
organ or tissue to appear before the list of organs or tissues and,
on page eight, a provision allowing a designated doctor or the
appropriate Alaska tissue bank to perform the donation procedure.
CHAIRMAN TAYLOR asked if the designation on page eight was even
necessary and MR. SAAKVITNE replied that in all his years of
experience it has never been used, and pointed out that the
attending physician is prohibited by law from removing organs or
tissues.
MR. RICHARD WILLIAMS, a 70 year old man in good health, testified
from Anchorage that he was not concerned so much with death, as to
how he dies. He said this bill address the fears of seniors
regarding how they will pass out of this world.
MR. MATT ANDERSON, representing the Department of Health and Social
Services, spoke in support of the bill that he said will provide
clarity for patients and health care providers. He suggested three
minor changes to the bill. First the change from "serious medical
condition" to "qualifying medical condition" which he says will
clarify, not change, the bill by guiding the reader back to the
bill itself for definition. Second, MR. ANDERSON asked for the
insertion of "where available" before medically determined on page
13, line 2, to allow the bill to be more easily implemented in
small communities. Third, he suggested that on page 10, the
paragraphs defining "terminal" condition may apply to trauma
patients. He said in these cases doctors should be able to make
decisions without having to first contact family members. He urged
this section be clarified to reflect it applies only to non-
emergency situations.
SENATOR PARNELL commented that he understood the difference between
qualifying and serious but said the lack of clarity comes from the
interpretation of sections A, B, C, and D, and not in the phrase
"serious medical condition" itself. SENATOR PARNELL said he would
like to keep the word serious in, and have the bill apply only in
serious situations, not in qualifying situations. MR. ANDERSON
responded that the strengths of the bill far outweigh this
consideration.
Ms. CARNEY pointed out that page four, line 23 -25 states if food
and water are refused, "death will probably result". She thinks
perhaps "will result" is more clear. CHAIRMAN TAYLOR agreed,
saying the word probably is not appropriate.
SENATOR ELLIS expressed thanks to MS. PERI and CHAIRMAN TAYLOR,
saying he had considered introducing the bill but asked CHAIRMAN
TAYLOR to do it for the good of the legislation itself. He
commended Mr. AMBROSE's work on this issue, as well as the effort
of CHAIRMAN TAYLOR to move this bill through the process.
MS. PERI commented that she and DEBORAH RANDALL had debated the
bill at length and find the term serious more explanatory and
believe it will be more reasonable for the lay person reading and
signing the document. DEBORAH RANDALL agreed that they had worked
closely with the bill drafter on this language, and it was designed
to correlate with the bill passed last year. Regarding the
physician designation, MS. RANDALL said it is strictly an option
and, if it is not chosen, the default is to an appropriate Alaska
tissue/organ bank. She said most of her clients are not interested
in specifying a doctor.
SENATOR PARNELL validated that this bill does not change the fact
that an attorney may not charge for a living will. CHAIRMAN TAYLOR
assured him that was correct and recounted the story of Dick
Eliasion wife's terminal illness, and his inability to remove life
support.
TAPE 98-11, SIDE B
Number 001
CHAIRMAN TAYLOR remarked that during a hospital banquet he found
out that over 90 per cent of people who had a living will spent
their last two weeks of life in the intensive care unit hooked up
to machines. He proposed as amendment #1 that on page 4 line 25,
the word "probably" be deleted. Without objection, it was so
ordered.
CHAIRMAN TAYLOR proposed a conceptual amendment (#2) that would
allow for the insertion of a space and appropriate language to
indicate donation of "any needed organ or tissue" on lines 17-18 on
page 8. Without objection, it was so ordered.
CHAIRMAN TAYLOR proposed amendment #3 to delete lines 1 through 5
on page 8, saying in the case that someone wanted to designate a
physician they could easily write that in. Without objection, it
was so ordered.
CHAIRMAN TAYLOR agreed with keeping the wording as serious, and did
not offer an amendment. SENATOR ELLIS moved CSSB 291(JUD) out of
committee. Without objection, it was so ordered.
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