Hawai‘i’s Medical Aid in Dying Act is based on, and nearly identical to that of Oregon’s Death with Dignity Act. The bill provided patients diagnosed as “terminally ill” and with prognoses within six months of life an opportunity to receive a written prescription to acquire a lethal dose of barbiturates.
Additionally, to be granted prescription, the patient must request the prescription and provide two witnesses – at least one of whom not being related, entitled to benefits from the ill person’s death or tied in any way to the administering health facility.
Although essentially dead in Hawai‘i, the Medical Aid in Dying Act remains relevant as ever. It has continued to grow in support and become implemented into state law; in the last decade, similar bills have been enacted in California, Washington, Colorado and Vermont.
To a fresh eye, many people — myself included — tend to support the bill. It seems common sense to allow individuals to accept immediate death if a painful one is imminent. But despite its theoretical sensibility, the bill itself holds many flaws.
Numerous fundamental issues
The most prominent concern with the bill: no requirement for psychiatric evaluation. Hawaii News Now wrongly documented this section of the bill, stating in a news segment, “qualifying for the prescription requires patients to undergo rigorous psychiatric evaluation.”
The bill itself actually states that the attending physician must, “refer the patient for counseling if appropriate.” In this case counseling is defined as a consultation with a state-licensed psychologist determining the patient’s capability of making a logical decision to undergo physician assisted suicide.
Not requiring psychiatric evaluation proves a serious complication. In a study done by Baylor University, as a result of their terminal diagnosis, around 77 percent of terminally ill patients suffer from severe depression.
If not examined as mentally capable, the patient could make a choice at a time when their decision-making skills are impaired. A highly emotion-based decision can often be irrational – leading to a result the patient might not have otherwise chosen.
This key issue would not be as glaring if not for an ineffective safety net. To prevent a highly emotion-based decision, the bill states the request for assisted suicide must be “witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is capable, acting voluntarily, and is not being coerced to sign the request.”
While it makes sense in theory, if a mentally unstable, terminally ill patient was desperate enough to take their life, he/she could seek the assistance of any random stranger with the ability to use a pen and a state ID. This could prove costly for one without a balanced mind.
But patient health is not the only concern. In a study done at the Oregon Health and Science University, “many doctors who have participated in physician assisted suicide are adversely affected emotionally and psychologically by their experiences.” Regardless of the pain they might prevent, it can be distressing for physicians to assist in the death of another, especially when patients are the individuals they have been sworn to protect.
The bill itself lacks language to address this – in no place does it provide information as to whether an attending physician is required to abide by the patient’s wishes.
If a physician refused, there are unclear procedural aspects that come into play. Is a doctor allowed to reject their request on the grounds of moral difficulty? If they did, would the patient be able to change attending physicians? And can the health care facility be subject to liability if the physician struggled with the emotional result of assisted suicide? All are questions that remain unanswered due to the bill’s lack of comprehensiveness.
Prominent legal concerns
In addition to the many logistical issues with the Medical Aid in Dying Act, individuals such as Hawai‘i State Representative Marcus Oshiro have also pointed out a few legal flaws.
The most glaring of these is a lack of doctor liability. Representative Oshiro argues that “under this current law, there is more liability in you as doctor trying to save someone’s life than killing someone by giving them a lethal prescription.”
This statement is true, physicians are liable to lawsuit in many situations in normal practice such as diagnosing a patient with a disease they did not actually have, mistakenly leaving a surgical tool behind or even treating a patient when not authorized.
Yet physicians have almost complete immunity throughout the assisted suicide process. While a doctor prescribing lethal medication with malicious intent is highly unlikely, the lack of liability complicates things.
The second concern with the bill’s legal aspects was the scenario in which a patient received the lethal dosage, but decided not to ingest it.
In fact, according to a 2015 report on Oregon’s Death with Dignity Act, 87 of the 218 individuals who received the medication chose not to take it. Whether the patient who owned the pills died within six months or not, there is a lethal dose of barbiturates laying at the disposal of whomever wants to use them.
Death with dignity in the future
The Medical Aid in Dying Act, and the few other bills similar to it in nature, is just not good enough. There are fundamental and legal issues that impair its ability to work efficiently. Regardless of its death in committee, attention must be brought to its inadequacy to prevent further similar bills in the future.
Keep in mind, the concept of dying with dignity remains positive. Terminally ill patients deserve to take their life in a clean, "dignified" manner. But in creating a bill that intertwines as greatly with personal responsibility as physician assisted suicide does, its flaws must be kept to a minimum.
Psychological testing must be mandatory; loopholes within the "safety net" system must be closed; thorough checks regarding the consumption process must be implemented. An answer to the death with dignity issue is possible – the Medical Aid in Dying Act is just not it.