INTRODUCTION

A bill aimed at legalizing physician-assisted suicide has been shelved by the state Legislature, but the issue remains alive.

The Blue Ribbon Panel on Living with Dignity, convened in 1996 by then-Gov. Ben Cayetano, proposed the bill in 1998. Some members of that panel have discussed reconvening to address the issue, including assessment of Oregon’s Death with Dignity Act, which went into effect only a few months before the panel completed its work.

State Sen. Josh Green, a Big Island physician and chairman of the Senate Health Committee, held the latest version of the bill last week after a 4-0 vote against it at the end of a five-hour committee hearing. He noted that testimony was "overwhelmingly opposed" to the bill, although polls have indicated that 70 percent of Hawaii residents have been in favor of physician-assisted suicide.

Washington became the second state to enact Death with Dignity in March 2009. Fewer than 100 patients in Oregon and Washington died last year with the assistance of doctors.

Meanwhile, the Montana Supreme Court ruled in 2009 that Montana’s law — like Hawaii state law — does not specifically prevent doctors from prescribing lethal drugs to mentally competent, terminally ill patients. Last week, Montana legislators tabled a proposal to establish rules governing physician-assisted suicide.
—
Hawaii lawmakers began considering physician-assisted suicide legislation soon after it became law in Oregon in 1997. Over the years, momentum has faded amid a huge growth of hospice care nationwide where palliative care aimed at controlling patients’ pain trumps doctor-assisted suicide — but the issue remains a heartfelt one on both sides of the debate.

This year’s Death With Dignity Act died last week at the hand of Sen. Josh Green, a Big Island physician who heads the Senate Health Committee. Although polls have consistently shown that 70 percent of Hawaii voters are in favor of the bill, Green noted that sentiment by those testifying on the bill was "overwhelmingly opposed."

Anthony Lenzer, a retired professor and former director of the Center on Aging at the University of Hawaii, supported the bill, testifying that it "has many safeguards built into it, for the protection of the patient, the prescribing physician and any facility within which the individual may reside."

Dr. Daniel Fischberg, a specialist in hospice and palliative medicine, which deals with lessening the patient’s pain without curing, testified that he and his colleagues "are dedicated to the relief of suffering" and reject "that there is such a thing as a life not worth living."

Green’s refusal to advance the bill to the Senate floor came as no surprise to those close to the issue.

"I didn’t even go down to the Legislature, because it wasn’t going to go anywhere," said James H. Pietsch, director of the Elder Law Program at the University of Hawaii’s law school.

Pietsch was a member of a Blue Ribbon Panel on Living with Dignity assembled in 1996 by then-Gov. Ben Cayetano to study the issue.

Only a few months after the Oregon law took effect, the panel recommended in 1998 that Hawaii lawmakers permit physician-assisted suicide when requested by a mentally alert person and approved by two physicians, a psychologist and a social worker.

Hawaii lawmakers were presented the proposal in 1999 and three years later it was passed by the House but narrowly defeated in the Senate. It has not come close to enactment since then.

Pietsch was a dissenter in the Blue Ribbon Panel "because I didn’t think that the blue ribbon committee had completed its work," he said. "They were dealing with pain, but most of the time it’s not going to be the pain that’s involved; it’s going to be suffering and then the disease process."

Meanwhile, hospice programs engaged in end-of-life care have mushroomed nationally from 25,000 patients in 1982 to more than 1.5 million patients in 2009. Representatives of Hawaii hospice programs did not testify to this year’s legislators.

"If a hospice were to oppose physician-assisted suicide, an argument is, then the people who want hospice may misconstrue that to be that they can’t have a choice about their care in hospice," said Ken Zeri, president and CEO of Hospice and Hawaii and president of Kokua Mau, the state organization of hospice and palliative care givers. "We don’t want that. So we instead decided to just publicly remain silent on the issue." Zeri said he had opposed legalizing physician-assisted suicide in past testimony.

When a patient is dying, it is commonplace for the doctor to withhold or withdraw artificial hydration or nutrition when intervention would merely prolong the dying process or cause suffering.

Where Pietsch sees "a fine line" between physician-assisted suicide and palliative sedation, inducing a deep sleep and stopping other treatment of a terminally ill patient, Zeri sees "a bright, shining line."

"The intent of therapy such as palliative sedation is to provide relief from suffering," Zei said. "The intent of that is not to hasten the end of life, and that is a very clear line for us."

Pietsch said he now would not oppose enactment of a law similar to that of Oregon and Washington state, without including lethal injection, which was allowed in the Hawaii bill proposed by the Blue Ribbon Panel.

While several people testified to the Senate committee that physician-assisted suicide would create "a slippery slope" toward voluntary and even involuntary euthanasia, Pietsch said, "I don’t see any of those problems in Oregon."

Last year, 59 terminally ill people died with physicians’ assistance in Oregon and 36 in Washington, where the suicide law went into effect in March 2009.

Pietsch said he has suggested to other members of the 1998 Blue Ribbon Panel that it "reconvene and finish up and do it complete."

This year’s lawmakers have "no committee-type of report that the Legislature can rely upon or can use or can refer to," Pietsch said. "Why not reconvene the blue ribbon committee and look at it in the context of Oregon, in the context of what we’ve learned, and the shortcomings of the blue ribbon committee? It wasn’t complete in my opinion."

Meanwhile, Pietsch noted that no law in Hawaii prohibits suicide, including physician-assisted suicide, although courts have not addressed the issue.

The Montana Supreme Court ruled in 2009 that Montana’s law does not specifically prevent doctors from prescribing lethal drugs to mentally competent, terminally ill patients. Montana advocates of physician-assisted suicide say it has been used since the high court ruling but will not say how many times.

The Montana Legislature tabled on Thursday a bill that would have established rules for physician-assisted suicide.

"I think what’s going to happen to the law will remain the same," said Montana state Sen. Anders Blewett. "Terminally ill patients will have to rely on courageous doctors who are willing to expose themselves to the risk of a criminal trial, and that embarrassment, even though they would prevail in a trial."

In Hawaii, Pietsch said, "If it went to the courts, I think it would be the same result."