Legislature(1997 - 1998)
02/25/1998 01:35 PM Senate JUD
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SENATE JUDICIARY COMMITTEE
February 25, 1998
1:35 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Drue Pearce, Vice-Chairman
Senator Mike Miller
Senator Sean Parnell
Senator Johnny Ellis
MEMBERS ABSENT
All members present.
COMMITTEE CALENDAR
SENATE BILL NO. 291
"An Act relating to living wills, do not resuscitate orders,
anatomical gifts, and the care and treatment of persons with
serious medical conditions."
- MOVED CSSB 291(JUD) OUT OF COMMITTEE
SENATE BILL NO. 208
"An Act relating to municipal service areas and providing for voter
approval of the formation, alteration, or abolishment of certain
service areas."
- MOVED SB 208 OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SB 291 - No previous action to report.
SB 208 - See Community & Regional Affairs minutes dated 2/9/98.
WITNESS REGISTER
Mr. Ralph Bennett
Staff to Senator Robin Taylor
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Presented SB 291
Ms. Bridgitte Carney
2002 McLean Blvd.
Eugene, Or 97405
POSITION STATEMENT: Supported SB 291
Mr. Jens Saakvitne
Life Alaska
1205 E. Int'l Airport Rd. #103
Anchorage, Ak 99518
POSITION STATEMENT: Supported SB 291
Ms. Virginia Peri
545 West 19th Avenue
Anchorage, Ak 99503
POSITION STATEMENT: Supported SB 291
Ms. Melba Cooke
1057 W. Fireweed Lane #102
Anchorage, Ak 99503
POSITION STATEMENT: Supported SB 291
Mr. Richard Williams
520 West 19th Avenue
Anchorage, Ak 99503
POSITION STATEMENT: Supported SB 291
Dr. Tom Buller
3822 Sycamore Loop
Anchorage, Ak 99504
POSITION STATEMENT: Supported SB 291
Ms. Deborah Randall
8601 Pioneer Drive
Anchorage, Ak 99504
POSITION STATEMENT: Supported SB 291
Mr. Matt Anderson
Department of Health, Education and Social Services
PO Box 110616
Juneau, Ak 99801
POSITION STATEMENT: Commented on SB 291
Ms. Linda Anderson
Fairbanks North Star Borough
130 Seward St. suite 503
Juneau, Ak 99801
POSITION STATEMENT: Commented on SB 208
Mr. Gene Kane
Department of Community and Regional Affairs
333 West 4th Avenue #220
Anchorage, Ak 99501
POSITION STATEMENT: Commented on SB 208
Mr. Ocie Adams
HC 30 Box 200
Wasilla, Ak 99654
POSITION STATEMENT: Supported SB 208
Ms. Tam Cook
130 Seward St. Suite 409
Juneau, Ak 99801-2105
POSITION STATEMENT: Commented on SB 208
ACTION NARRATIVE
TAPE 98-11, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:35 and announced SB 291 would be the first order of
business.
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.
SB 208 - VOTER APPROVAL OF SERVICE AREA CHANGES
SENATOR PARNELL introduced this bill as a means of strengthening
local control of service areas, in the spirit of Article 10,
Section 1, of the Alaska Constitution which established the
principle of maximum local control. The Constitution also enabled
the creation, alteration or abolishment of these service areas,
subject to provisions of law. Throughout Alaska, there are about
200 of these local service areas that assess themselves for a range
of services such as snow plowing and road maintenance. SENATOR
PARNELL stated that this bill requires a majority vote in three
situations: creation, alteration or change of a service area.
SENATOR PARNELL said an abolishment is subject to approval by the
majority of residents in the service area, abolishment and
replacement with a larger service area must be approved by a
majority of voters inside the existing service area, as well as a
majority of those within the proposed service area. SENATOR PARNELL
said areas being altered or combined must receive approval of the
majority of voters voting on the question and residing in each of
the service areas.
SENATOR PARNELL noted the bill is supported by many service area
boards around the state and he urged the committees's support.
MR. GENE KANE, representing the Department of Community and
Regional Affairs (DCRA), indicated that the bill diminishes local
control and is inconsistent with the five fundamental principles of
local government in Alaska. He agreed that Alaska's Constitution
provides for maximum local self-government but said SB 208 imposes
restrictions on the way certain service areas may be formed,
altered and abolished. The Constitutional delegates wanted
authority vested in the assembly to ensure a unified overview of
all functions, according to MR. KANE. He said the current law
allows for a local self-government that a borough assembly can
enact local laws to cover.
MR. KANE said the Constitution calls for the minimum of local
government units, and said SB 208 restricts the ability of local
governments to comply with this. He observed that there are
currently 250 service areas in Alaska within 16 organized boroughs,
with the Fairbanks North Star Borough containing over half of
these. MR. KANE said some of these service areas are tiny and this
bill would restrict the ability of the North Star Borough to
promote greater efficiency in its service area operations. He added
that the Constitution prevents the creation of new service areas in
home-rule and general-law governments if, consistent with the
constitutional provisions of maximum local self-government and
minimum numbers of local government units, the service can be
provided by an existing service area. Mr. Kane again said this bill
will restrict the ability of boroughs to conform with the
Constitution.
MR. KANE stated that the Constitution allows municipal governments
to take on home-rule status, which affords broader provisions than
any other state. He quoted a drafter of the Constitution who said,
"the Legislature should have the authority to deny local exercise
of specific powers when necessary in behalf of an overriding state
interest or to resolve conflicts of authority between home-rule
cities and home-rule boroughs. MR. KANE noted it was also assumed
that the Legislature would not act to limit home rule powers exept
under special circumstances. The Constitution prevents duplications
of tax-levying jurisdictions and SB 208 has the potential of
fostering this duplication, according to MR. KANE. He used the
possible annexation of an area near Kodiak to show how this might
occur. In conclusion, MR. KANE said DCRA does not support the bill
for the previously stated reasons and he mentioned he also had some
technical suggestions regarding the bill.
SENATOR PARNELL asked if the amendments were substantive or merely
clean up and MR. KANE indicated the latter.
MR. OCIE ADAMS, a volunteer representing the Road Service Area
Advisory Board, commended SENATOR PARNELL for looking out for the
taxpayer in this bil. MR. ADAMS said he'd like to see the power
returned to the people, so they may decide what they want done with
their service areas. He noted that the only area of concern is
section 2, line 14 which seems to require a city ordinance or voter
approval for a service area change. He wondered if this should read
"and". SENATOR MILLER said his reading shows it requires two
separate affirmative votes to effect a change. CHAIRMAN TAYLOR
asked if MR. ADAMS had a problem with two separate votes and MR.
ADAMS said he preferred it. It did seem to him that both the city
and the borough could agree and not require a vote of the service
area residents or the voters in the city. CHAIRMAN TAYLOR said he
believed MR. ADAMS was reading the bill correctly and the use of
the word "or" would seem to allow the city or the borough to make
changes by ordinance without a vote. MR. ADAMS verified that was
his concern and suggested the change would tighten things up.
SENATOR PEARCE asked if anything in the bill could be used by an
area of the state to prevent its residents from voting on the
establishment of an organized borough. SENATOR PARNELL did not
believe so, according to previous testimony form DCRA. MR. KANE
interjected that he did not see it being used in that context, as
it only applies within the 16 existing organized boroughs.
CHAIRMAN TAYLOR asked MR. KANE if he though the word "or" was
appropriate if the intent is to allow a vote, or if the word "and"
would be required. Mr. Kane said the latter was consistent with his
understanding and CHAIRMAN TAYLOR clarified if the vote was desired
the word would be "and". MR. KANE concurred. SENATOR PARNELL asked
if this was existing law and MR. KANE replied it was. SENATOR
PARNELL asked if the word was changed to "and" it would apply to
the recent situation in Haines. MR. ADAMS said he did not believe
so and stated that if the "or" was removed that would also delete
the conditional phrase and act to require the satisfaction of both
paragraphs.
SENATOR ELLIS inquired whether there had been testimony heard from
the municipal league and SENATOR PARNELL said no, they had no
coherent position at the time of the last hearing. SENATOR ELLIS
asked if there was an Anchorage assembly position on this
legislation and SENATOR PARNELL responded the only thing he could
relate was that, at last night's assembly meeting, there was a
motion to adopt a resolution in opposition to this bill and that
motion was tabled and no position was taken.
SENATOR PEARCE asked if this law had been in effect, could the
state have stopped providing Troopers to the Anchorage hillside.
SENATOR PARNELL responded that he did not believe so. CHAIRMAN
TAYLOR said he did not believe this would stop the state if they
wanted to take over, though he couldn't image that happening.
SENATOR PEARCE said she was really thinking about whether or not
the state could stop providing a certain type of service and if
this bill would prevent that. SENATOR PARNELL replied no, this bill
deals only with self-assessing service areas. CHAIRMAN TAYLOR
agreed he did not see the application here. MR. KANE repeated that
this bill relates only to the 16 organized boroughs, and he sees no
application outside of those service areas.
SENATOR ELLIS asked if SENATOR PARNELL had gotten an opinion on the
bill from Mayor Mystrom and SENATOR PARNELL stated he had not, nor
heard from his office.
MS. LINDA ANDERSON, representing the Fairbanks North Star Borough,
advised the committee she had not known that Fairbanks comprised
100 out of the 250 road service areas. She said the Fairbanks
assembly is constantly being approached by road service areas for
new proposals and abolishments and the concern is with the
provision on page 2, line 14, regarding combining road service
areas. She voiced the position that there is quite a bit of
duplication in those areas and the assembly would like to reserve
the right to decide whether to create a new road service area or
simply combine an area into an existing road service area. She
expressed her willingness to work with the sponsor on a solution to
this problem.
SENATOR PARNELL maintained that the assembly will ultimately decide
and suggested that their fear is of proliferation. MS. ANDERSON
said in fact they were most concerned with the combination of
areas. SENATOR PARNELL asked if the assembly had a problem asking
the residents of the areas to vote on combination of areas. MS.
ANDERSON replied that they are concerned with the possibility of a
stalemate, which would raise administrative costs and further
stretch the limited revenue-sharing funds they receive now. SENATOR
PARNELL commented it may make them more conscious of drawing
boundaries that the voters will approve. He said he wants these
decisions made as locally as possible.
CHAIRMAN TAYLOR asked MS. ANDERSON if the borough has area-wide
road powers now. She responded that they only had specific pockets
within the borough. CHAIRMAN TAYLOR said this was a result of their
failure to bite the bullet and get their roads all covered under
one road program. MS. ANDERSON replied that this was also a local
issue and this is how the residents wanted it. SENATOR PARNELL
remarked that this speaks well for the bill. MS. ANDERSON suggested
perhaps this might be optional to second class boroughs, which
would still allow some say by the assembly. CHAIRMAN TAYLOR said
Ketchikan has never taken on road powers and has no road equipment
nor fire vehicles. He said in his district one of the biggest
problems is with the hodgepodge of different water and sewer
systems.
CHAIRMAN TAYLOR asked again about the word "or". SENATOR PARNELL
said he was not prepared to change this without legal counsel.
CHAIRMAN TAYLOR agreed. SENATOR ELLIS noted that may give the
committee time to solicit opinions of other groups. SENATOR PARNELL
indicated that he did solicit the opinion of road service areas and
they responded.
SENATOR PARNELL moved Senate bill 208 from committee. SENATOR ELLIS
objected and explained that he believes, as the last responsible
committee working on the bill, they should get the necessary legal
advice on the "and" vs. "or" question and also the input of other
groups. SENATOR PARNELL acknowledged that they could get Tam Cook
on the phone in two minutes.
SENATOR ELLIS stated that legal issues should be resolved in the
judiciary committee and not the rules committee. SENATOR PARNELL
withdrew his motion and asked MS. TAM COOK about page 2, line 2.
MS. TAM COOK, from the legislative legal department, explained that
changing the word "or" to "and" would require the satisfaction of
both paragraphs on either side. SENATOR PARNELL asked what the
impact would be. MS. COOK said it would mean a city could no longer
act by ordinance, and would have to hold an election on the issue.
SENATOR PARNELL moved SB 208 from committee with individual
recommendations. Without objection, it was so ordered.
With no further business to come before the committee, they were
adjourned.
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