Viewpoint: How Hawaii's medical aid in dying legislation could affect patient access

After Hawaii became the eighth U.S. jurisdiction to authorize medical aid in dying April 5, the legislation's set of safeguards could restrict access for patients looking to end their life, two authors argue in Health Affairs blog post.

Six insights from the blog post, written by Mara Buchbinder, PhD, associate professor of social medicine and core faculty in the Center for Bioethics at Chapel Hill-based University of North Carolina, and Thaddeus Pope, PhD, professor of law and director of the Health Law Institute at St. Paul, Minn.-based Mitchell Hamline School of Law:

1. Hawaii's Our Care, Our Choice Act, which takes effect Jan. 1, allows state physicians to write a lethal prescription for a mentally capacitated, terminally ill adult patient. The patient may later self-administer the prescription to end their life.

But the Hawaii OCOCA breaks from conventions in MAID legislation by creating the most restrictive set of safeguards for the process in the country, the authors argue. "In this respect, it may herald a broader policy shift with important and troubling implications for patient access," the authors write. "From a public health perspective, safeguards are necessary for the protection of vulnerable groups. But when safeguards are more restrictive than necessary, they impede patient participation and imperil principles of justice."

2. In the Oregon model, for example, a person must be a resident of the state, 18 or older, have decision-making capacity and have a terminal disease expected to result in death within six months to qualify for MAID.

Patients must make two oral requests and one witnessed written request for lethal medication, and the oral requests must be 15 days apart. An attending and consulting physician must confirm the patient's capacity and terminal diagnosis. Patients who satisfy these requirements must administer the medication themselves. 

3. But Hawaii OCOCA differs from the Oregon model in two ways, the authors note. First, Hawaii raised the minimum waiting time between the first request and the prescription from 15 to 22 days. Second, Hawaii's model requires every patient to have a mental health screening before getting a lethal prescription, whether or not their physicians think it is needed. Due to this burden, particularly for rural patients, the Hawaii OCOCA allows telehealth counseling, the authors say. 

4. "Presumably, Hawaii's augmented safeguards originated out of a concern for patient safety and protection," the authors write. "Legislators responsibly require safeguards to protect patients. But at some point, safeguards do more harm than good."

The authors discuss the Hawaii OCOCA expanded waiting period, noting how in states where MAID is already legal, a 15-day waiting period creates a significant barrier for some patients, who may lose time finding a physician to prescribe the lethal medication. "The substantially longer waiting period in Hawaii means that we can expect even more patients who desire MAID to die or lose capacity before completing the process," the authors write.  

5. Additionally, no evidence suggests the long-standing 15-day waiting period is insufficient, the authors say. "Nor is there any evidence that an additional seven days adds any additional protective value," they write. "Consequently, the expanded waiting period can only be an obstacle. It impedes access without offering any countervailing patient safety benefit."

6. The increased safeguards in Hawaii may signal a national trend in MAID policy when looking at other recent legislative proposals, the authors write.  

"While Hawaii's law has yet to take effect, 40 years of combined experience in other states suggest that OCOCA's additional safeguards would unduly restrict access," the authors write. "Given that there is no evidence that the conventional safeguards are inadequate, there is no reason to strengthen them at the risk of impeding access."

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