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Protection of Conscience Project

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Service, not Servitude
 

TITLE 25. PROFESSIONS AND OCCUPATIONS

453. Medicine and Surgery

453-16 Intentional termination of pregnancy; penalties; refusal to perform.

Universal Citation: HI Rev Stat § 453-16 (2017)

. . . (b) Abortion shall mean an operation to intentionally terminate the pregnancy of a nonviable fetus. The termination of a pregnancy of a viable fetus is not included in this section. . .

(e) Nothing in this section shall require any hospital or any person to participate in an abortion nor shall any hospital or any person be liable for a refusal. [L 1970, c 1, §2; am L 2006, c 35, §2; am L 2008, c 5, §18]


Our Care, Our Choice Act (April, 2018)

The following provisions are contained in an act that legalizes assisted suicide for Hawaiian residents who are at least 18 years of age, have been diagnosed with a terminal illness, and who are expected to die within six months. While Sections 19(a)2 and 4 state that no health care provider can be penalized for refusing to participate in assisted suicide, Section 19(e) defines "participation" to exclude referral in relation to all of the provisions of Section 19.  This means that a health care provider who refuses to refer a patient for assisted suicide is exposed to legal liability.  The analogous provision in Oregon's Death With Dignity Act (upon which the Our Care, Our Choice Act is based) defines participation to exclude referral only in specific relation to the ability of a health care institution to discipline a physician who refers a patient in the institution for assisted suicde.  [Full text of Act]

 19. Immunities; basis for prohibiting health care provider from participation; notification; permissible sanctions.

(a)  Except as provided in section -20 and subsection (c):

(1) No person shall be subject to civil or criminal liability or professional disciplinary action for participating or acting in good faith compliance with this chapter, including being present when a qualified patient self-administers the prescribed medication to end the qualified patient's life pursuant to this chapter;

(2) No professional organization or association, health care provider, or health care facility shall subject any person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership, or other penalty for participating or refusing to participate in good faith compliance with this chapter;

(3) No request by a qualified patient for a prescription or provision by a health care provider of a prescription or medication in good faith compliance with this chapter shall constitute neglect, harm, self-neglect, or abuse for any purpose of law or provide the sole basis for the appointment of a guardian or conservator;

(4) No health care provider or health care facility shall be under any duty, whether by contract, statute, or any other legal requirement, to participate in the provision to a qualified patient of a prescription or of medication to end the qualified patient's life pursuant to this chapter. If a health care provider is unable or unwilling to carry out a patient's request under this chapter and the patient transfers the patient's care to a new health care provider, the prior health care provider shall transfer, upon request, a copy of the patient's relevant medical records to the new health care provider; and

(5) No health care facility shall be subject to civil or criminal liability for acting in good faith compliance with this chapter.

(b) Notwithstanding any other provision of law, a health care facility may prohibit a health care provider from participating in actions covered by this chapter on the premises of the health care facility if the health care facility has notified the health care provider of the health care facility's policy regarding participation in actions covered by this chapter. Nothing in this subsection shall prevent a health care provider from providing health care services to a patient that do not constitute participation in actions covered by this chapter.

(c) Subsection (a) notwithstanding, if the health care facility has notified the health care provider prior to participation in actions covered by this chapter that the health care facility prohibits participation on its premises in actions covered by this chapter, the health care facility may subject the health care provider to the following sanctions:

(1) Loss of privileges, loss of membership, or other sanction provided pursuant to the medical staff bylaws, policies, and procedures of the health care facility if the health care provider is a member of the health care facility's medical staff and participates in actions cdvered by this chapter while on the premises of the health care facility other than in the private medical office of the health care provider;

(2) Termination of lease or other property contract or other nonmon~tary remedies provided by lease contract, not including loss or restriction of medical staff privileges or exclusion from a provider panel, if the health care provider participates in actions covered by this chapter while on the premises of the health care facility or on property that is owned by or under the direct control of the health care facility; or

(3) Termination of contract or other nonmonetary remedies provided by contract if the health care provider participates in actions covered by this chapter while acting in the course and scope of the health care provider's capacity as an employee or independent contractor of the health care facility; provided that nothing in this paragraph shall be construed to prevent:

 (A) A health care provider from participating in actions covered by this chapter while acting outside the course and scope of the health care provider's capacity as an employee or independent contractor; or

(B) A patient from contracting with the patient's attending provider, consulting provider, or counselor to act outside the course and scope of those providers' capacity as an employee or independent contractor of the health care facility.

(d) A health care facility that imposes sanctions pursuant to subsection (c) shall follow all due process and other procedures the health care facility may have that are related to the imposition of sanctions on a health care provider.

(e) For the purposes of this section:

"Notify" means to deliver a separate statement in writing to a health care provider specifically informing the health care 8 provider prior to the health care provider's participation in actions covered by this chapter of the health care facility's policy regarding participation in actions covered by this chapter.

"Participate in actions covered by this chapter" means to perform the duties of an attending provider pursuant to section -4, the consulting provider function pursuant to section -5, or the counseling referral function or counseling pursuant to section -6. The term does not include:

(1) Making an initial determination that a patient has a terminal disease and informing the patient of the medical prognosis;

(2) Providing information about this chapter to a patient upon the request of the patient;

(3) Providing a patient, upon the request of the patient, with a referral to another physician; or

(4) Entering into a contract with a patient as the patient's attending provider, consulting provider, or counselor to act outside of the course and scope of the health care provider's capacity as an employee or independent contractor of a health care facility.

(f) Action taken pursuant to sections -4 through -6 shall not be the sole basis for disciplinary action under sections 453-8, 465-13, or 467E-12.