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  • BIOETHICS FORUM ESSAY

Hawaii’s New End-of-Life Law: Do the Additional Safeguards Withstand Scrutiny?

Last month, Hawaii became the seventh state, with the District of Columbia, to legalize physician-assisted suicide. Similar to some of the other state laws, Hawaii’s Our Care, Our Choice Act permits competent adults with a terminal illness and a diagnosis of less than six months to live to obtain a lethal prescription to use to take their own lives. Proponents assert the new law, in addition to giving patients a measure of control, autonomy, and dignity, also contains rigorous safeguards. Despite this rhetoric, Hawaii’s law, like legalized PAS in general, raises troubling implications for the standard of care and for transparency. It also highlights the immense power of a lobby, Compassion & Choices, to strategically politicize language and control the public discourse to make legal change appear to result from organic social shifts rather than orchestrated actions.

Terminology matters: framing a lethal prescription as a viable and even desirable alternative to addressing shortcomings in palliative and hospice care obfuscates that “care” and “choice” mean supplying vulnerable patients with a medication to end their life. Under the prevailing medical standard of care, patients who report feeling depressed, a burden to others, trapped, or hopeless, or are struggling with managing their medical condition would ordinarily trigger intervention to address risk factors for suicide. However, lobbyists’ use of euphemistic language may incrementally change how physicians and public health professionals respond to patients who express suicidal thoughts.

Understanding the patient’s psychological condition is important because research in Oregon has found that patients considering PAS have concerns relating to loss of autonomy, ability to engage in activities that make life enjoyable, and loss of dignity. (Contrary to popular belief, excruciating pain is not a substantial factor in patient decisions to seek PAS.)  Under Hawaii’s law, however, a patient may obtain a consultation via telehealth. While telehealth promises to reduce cost and increase efficiency to address other health care issues, we should pause to consider the sufficiency and ethics of a remote consultation with patients to discuss their motivations and screen for potential problems.

I take issue with what I see as a pro forma requirement. It looks like a protection, but it’s not designed to address underlying issues such as a patient’s depression and whether it could be relieved. Patients facing psychological, social, or existential concerns deserve compassion in the form of reassurance, social support, and practical solutions to address feeling like a burden on others. Needing connection and validation throughout our life–and especially at our most vulnerable when we require assistance from others–translates to knowing that we are meaningful and loved.

Dr. Herbert Hendin and Dr. Kathleen Foley perhaps framed it best: patients desperately need relief from mental and physical distress, and without such relief, they would rather die. Relieving patients’ distress requires enabling and supporting a medical system and standard of care that permits physicians the time and reimbursement to address patient desperation and ambivalence and to offer solutions and referrals to competent providers.

Because of the construction of Hawaii’s law, we are unlikely to know how physicians counsel patients on alternatives and screen patients’ decision-making ability. As in Oregon, the Hawaii State Department of Health will collect limited records, which are confidential and not legally discoverable. While this protects patient privacy, the lack of transparency undermines any claims refuting abuse: we simply cannot know the content of these conversations. We do have access to a select few private medical conversations published in the media, which prompted critics to assert that limited recordkeeping enables patients to go physician-shopping and have brief pro forma discussions.

As a society, we should be skeptical of a practice that arose from lobbying and relies on politicized language to fundamentally alter the physician’s traditional role and the standard of care. I posit Hawaii’s “rigorous safeguards” constitute hollow promises.

Katherine Drabiak, JD, is an assistant professor in the College of Public Health at the University of South Florida.

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Published on: May 4, 2018
Published in: Chronic Conditions and End of Life Care, End of Life, Hastings Bioethics Forum

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One comment on “Hawaii’s New End-of-Life Law: Do the Additional Safeguards Withstand Scrutiny?

  1. Paul Nelson on

    Ultimately, assisted suicide for a person with a health condition that will progressively worsen the stability of a person’s HEALTH, is not treatable, and for which healthcare is unlikely to maintain a person’s Human Dignity before death seems an ethical proposition. For a person whose decision process is affected by inability to ether trust their source of healthcare or their reflective-cognition human capability is impaired by serious depression, the decision process becomes more difficult. Mild depression is a normal fact of life for many person’s with or without a life-ending health condition. It seems unlikely that a person’s level of Depression could be reliably determined other than by a trusting relationship with a Primary Physician of long-standing that included cooperation and reciprocity, i.e., a high level of Social Capital.

    Since our nation has NO means to guarantee the equitable availability and ecologic accessibility of Primary Healthcare for each citizen, it seems unlikely that the state should authorize “premature” death prior to the status of fully verifiable, declining HUMAN DIGNITY of life solely on the basis of untreated depression. The likelihood of another physician with a long-term relationship based on TRUST would not reliably lend itself to a legal definition.

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