Hawai’i Members: Our Care, Our Choice Act Takes Effect in 2019
The state of Hawai’i just became the seventh state in the nation to allow physicians to assist terminally-ill patients in ending their own lives, in a move described by the state’s governor to allow those patients “to make their own end-of-life choices with dignity, grace and peace.”
Beginning on January 1, 2019, under the Our Care, Our Choice Act, Hawai’i residents who are mentally capable and suffering from a terminal illness are able to obtain prescriptions for medications to facilitate their death. HB 2739 was signed into law by Governor David Ige on April 5, 2018, and it is modeled after Oregon’s Death with Dignity Act, which has been in effect for over 20 years.
For the full text of the bill, please see here.
Similar to existing laws, the Our Care, Our Choice Act establishes a regulatory process under which an adult resident with a medically-confirmed terminal disease and less than six months to live may obtain a prescription for medication to end the patient’s life.
To address opponents’ concerns about misuse, the Hawai’i law includes safeguards designed to be the most rigorous in the nation. These safeguards include: required evaluation by multiple providers, including a mental health professional; a process of three separate requests with waiting periods in between; a requirement that the medication be self-administered; patient rights to rescind requests or not fill prescriptions at any point; and felony criminal charges for tampering with request or coercing patients to make requests under the law.
Importantly, the law makes participation voluntary for both patients and physicians. Patients can withdraw their request at any point, and they are not required to self-administer the medication if they obtain it. Furthermore, the law does not require physician or health care entities to participate in facilitating the end of a patient’s life, and physicians cannot be compelled to participate through employment or other contracts. It should be noted, however, that a health care entity can prohibit activities under this law from occurring on its premises, as long as the entity has notified the physician of the policy.
The law also includes immunities for physicians against any criminal, civil, or professional disciplinary action arising directly from participation under this law.
In order to qualify to make a request for an aid-in-dying medication, a patient must:
- Be a Hawaiian citizen and at least 18 years old;
- Undergo evaluations by two separate physicians to confirm diagnosis, prognosis, medical decision-making capacity, and the voluntary nature of the request;
- Undergo evaluation by a counselor (psychiatrist, psychologist, or LCSW) to determine that the patient is mentally capable, and does not appear to be suffering from undertreatment or nontreatment of depression or other condition that may interfere with their ability to make an informed decision. The consultation can be performed through telehealth.
A qualified patient must make three separate requests for an aid-in-dying medication:
- Two verbal requests communicated a minimum of 20 days apart;
- Written request submitted on the approved form and witnessed by two individuals;
- One of the witnesses cannot be a relative, beneficiary of the patient’s estate, agent of the healthcare facility, or the attending health care provider.
Once the patient’s attending physician agrees to participate, he/she must:
- Make an initial determination of whether the patient has a terminal disease, defined as causing death within 6 months, and is capable of medical decision-making;
- Confirm Hawai’ian residency;
- Conduct a very specific informed consent discussion, including alternative end-of-life care options of comfort care, hospice, and pain control;
- Refer the patient to a consulting physician to confirm the patient’s diagnosis, intentions, and mental capacity;
- Refer the patient for evaluation and counseling by a mental health professional;
- Recommend that the patient notify their next of kin;
- Counsel the patient about having another person present when the patient self-administers the medication;
- Advise the patient that he/she can rescind the request at any time and in any manner;
- Specifically offer the patient a chance to rescind their request at the time of the second verbal request;
- Again verify, before writing the prescription, that the patient is making an informed decision;
- Wait a minimum of 48 hours after receiving the written request before providing the aid-in-dying prescription;
- Within 30 calendar days of writing the prescription, submit a copy of the patient’s written request and a copy of other documentation to the Hawai’i Department of Health;
- Within 30 calendar days of the patient’s death, send additional documentation to the Department of Health.
For more additional detailed information and recommendations regarding the Our Care, Our Choice Act, please see the Hawai’i Department of Health Office of Program Policy and Development resource page.
 Office of the Governor – News Release – Governor Signs Our Care, Our Choice Act, Allowing End of Life Choices for Terminally Ill
 Other states that allow this practice include California, Colorado, District of Columbia, Montana, Oregon, Vermont, and Washington.