 I'm Marsha Joyner, and we are navigating the journey. Navigating the journey is dedicated to exploring the options and choices for end of life care and to assist people talking about their wishes. It's time to transform our culture so we shift from not talking about dying, but to talk about it. It's time to share the way we want to live our lives at the end of our lives. And it's time to communicate about the kind of care we want and don't want. We believe that that place for this to begin is not in the intensive care unit, but together we can explore the various paths to life's ending. Together, we can make these difficult conversations easier. Together, we can make sure our own wishes and those of our loved ones are expressed and respected. If you're ready to join us, we ask, navigate the journey. We cannot talk about the end of life options without exploring the legal aspects of medical aid and dying. Today's guest is my dear friend, Peter B. Carlaw. Marsha, it's a pleasure to see you, as always. After serving mayor, Peter became my partner with one of the oldest law firms since 1870s. 1800s, 1870s, yes. 1876, my goodness. And becoming the first mayor in Honolulu's history to be identified as an independent prior to serving as mayor. Non-partisan, non-partisan. OK, prior to serving, he was prosecuting attorney from 1996. Forever. I was prosecuting for a quarter of a century. Wow. And so we are asking him today to talk about the lawsuit and much more that was filed by our guest from last week, John Radcliffe. I know nothing, nothing, nothing about lawsuits. And John referred to it. So we asked who else but a prosecuting attorney forever to talk about lawsuits. In this case, a lawsuit had been filed by the attorney general's office, not on just one occasion with David Louie, but also when my friend Doug Chin followed suit. And they discussed the potential of a charge of manslaughter being imposed. And felt that this was what is currently present on this. Manslaughter for whom? It would be manslaughter for somebody to assist in the dying of Mr. Radcliffe. The doctor, it would be for that person. And while John Radcliffe is alive, I assume it would be to enjoin him from doing the acts that would lead to that, although that would be a suicide largely because he would be killing himself. But the cancer is killing him. He's not. Oh, no. And I wanted to read something to you about that because I think Mr. Radcliffe made a very, very poignant expression of how he felt. Mr. Radcliffe very much wants to live. But as a result of his terminal illness, he is approaching the end of his life and has no reasonable likelihood or prospect of recovery. As his disease takes its toll, he faces the progressive inexorable erosion of body function and integrity, increasing pain and suffering, and the loss of personal dignity, which he considers to be the hallmark of human life and the hallmark therefore of his life as well. So he tells you exactly coherently, intelligently, and passionately why he believes that he should be given this option. So now back to the lawsuit. So what are they asking in the lawsuit? Well, the lawsuit is essentially to ask for the assistance to get him to the point where he will pass away and to have medical aid when and if it's necessary in the process. And that is where the attorney generals have stepped in and said, no, if you are aiding this person to do that, then you have on the table against you the potential of a manslaughter conviction, which carries a significant prison sentence in certain circumstances, not always. But typically, a manslaughter case can get you up to 20 years in prison. Oh. OK. So by filing this lawsuit, they are asking that the decisions, prior decisions, be overturned. What did they ask before? No, no, are you talking about what John Ranko Reikler was asking for? By this lawsuit. He's asking for permission for him to go ahead in this case for him. Yes. And in that case, he will be setting a precedent for it to be done for other people who also wish to die with dignity. So what we know for sure, lawsuits take time, of course. And he doesn't have but so much time. So I think the idea, and I'm not sure, but I think the idea was legislation takes time also. It'll take forever. Forever, yeah. We've been down this road for 25 years. And we came within three votes one year. So of passing. So would this hopefully move ahead of the legislature? Because he doesn't have. He makes a very, very strong point that, OK, we can wait for that process. Or let's change that. You can wait for that process. I can't. And so as a result, Mr. Radcliffe is saying I should be given the option of having medical assistance for my passing. And so that I can die with the integrity that I believe is necessary and my option. And hopefully, that will become an option for other people as well who are under circumstances that are similar to him. And I think we all know people who have died long, extended, protracted deaths. When they were in agony, they had clearly said to themselves and to others that they've had enough. They don't want to keep on going. And yet consistently there were no heroic measures were taken. And yet they kept on living and living and living long past the point where there had been endless suffering and sometimes depletion of monetary resources from the family as a result of what had happened. I had my mother with us for the last year of her life. And she had emphysema. And it just broke my heart to watch her trying to breathe. Every breath was labor. And there was nothing I could do, nothing. And it just, my husband would go in the room because she loved the way he made bacon and eggs. And he would take it and he's a big guy. And he would come out of the room and just cry. It was just heartbreaking to watch. And try, you know, we had hospice and everybody was wonderful. But there's a point at which surely there's something we can do. Well, and it's one of these things where there has been an ongoing progression of the medical science in many miraculous and wonderful ways. And I think about 2,000 years ago, I was looking this up, they said that the average life on the Serengeti for a male was 40 to 45 years old. And for a woman it was 30 to 35 years old. And we're living now into the 90s. There are some people who are centurions, if that's what you call somebody who's 100 years old. So we've long outlived the way the basic scheme was supposed to work in nature. And that, of course, is a wonderfully good thing. But the point where you get to you're now making somebody suffer is unacceptable. And if they have had enough, they've had enough. And sometimes not giving heroic measures isn't enough because they can still hang on and continue to suffer. One of the things about this bill is that the person has the option to ask for the medication. But that doesn't mean they have to take it. The doctor does not administer it. The doctor just writes a prescription. And then you can feel it or not. And you must be of sound mind and be able to take it. See, the doctor doesn't give it to you. He doesn't touch you. He just has to certify that you have reached a point where there is nothing we can do. There is no medical intervention that we can keep you going. All of that has to be certified. And then you, not me. I can't do anything to grandma. You have to be able to take it. It is your choice. Grandma has to take it. By providing all of those things and the vehicle that will lead to her death, you would have to take a look at the concept of accomplice liability. And if somebody has substantially aided somebody in the commission of a crime, then that person can be called an accomplice. And therefore, I do not believe that that would, in and of itself, make it so that you were safe from this hypothetical manslaughter charge. That's just too much. You're lost up in a world of rules. We all are now. And a lot of them are as a result of the legislature and a lot of them are as a result of the attorneys in the world. All of those things exist. And to a large part, they accomplish good things and sometimes not such good things. And this is one where the law hasn't caught up with the reality of human beings living well beyond the point of the way the machine was made to work and now are suffering enormous problems with it. And just some people have such a sturdy constitution that they can continue to live, even when basically miraculous measures have been taken and haven't succeeded. Well, when you think of, I guess this just doesn't make sense to me, if you're in the hospital and you're hooked up to all this stuff, the doctor can turn off the ventilator. Well, the doctor under his oath would probably not be given the option of doing that not only under his Hippocratic oath, but also under the rules that exist now. What I'm saying is that it's OK for someone to turn off the ventilator. It's OK not to give the person substance, food and drink and all those kind of things. And to give people what is it called terminal sedation. So they don't get prosecuted for that. But for this, which is the same thing, they get prosecuted. I don't understand the difference. It's a very, very thin line and it's a legal line. It's not something that exists in common sense and reason, but it does. I was thinking about this as we were talking when I was coming out. I was thinking it's very difficult to prosecute somebody for assisting. It's not difficult, but you can prosecute somebody for assisting a suicide. And I recall on 9-11, people at the top of that were given the choice of either burning to death or basically losing their ability or getting smoke inhalation or jumping. And there was a man up on the top who had assisted people in jumping because they were afraid to, but none of them wanted to burn to death. And then ultimately, he did the same thing. Well, you could argue if he had somehow miraculously been saved that he had assisted suicides. When in fact, he was doing the most humane of things and ultimately took that route himself to keep from having a horrible, painful, excruciating death in fear and terror and getting that over with quickly. Well, I think we need to identify the fact that this is not suicide. Yep, it's not. This is not suicide because, like Radcliffe said, the cancer's already eaten up his body. Suicide is when somebody like me says, oh, I'm depressed, I don't wanna live anymore, and I'm gonna do such and such. Correct. So I think we need to really hone in on the difference of what is suicide and what isn't. Correct. Yeah, can you, is there a legal definition to that? I don't know that there's a legal definition. I sort of, the common sense definition is taking your own life. Yeah, but I'm puzzled. I'll tell you what, let's go to break and let me think about the difference. We'll come right back and we'll talk about it. We'll focus in and we'll hone in. We'll snipe you in on that difference. Okay. Aloha, everybody. My name is Mark Shklav. I'd like you to join me for my program, Law Across the Sea on thinktechhawaii.com. Aloha. Hello, I'm Marianne Sasaki. Welcome to thinktechhawaii, where some of the most interesting conversations in Honolulu go on. I have a show on Wednesdays from one to two called Life in the Law, where we discuss legal issues, politics, governmental topics, and a whole host of issues. I hope you'll join me. Hi, I'm Tim Appichella. I'm the host for Moving Hawaii Forward, and the show is dedicated to transportation and traffic issues in Oahu. We are all frustrated by sitting in our cars in bumper-to-bumper traffic, and this show is dedicated to talking with folks that not only we can define the problem, but we hopefully can come to the table with some solutions. So I invite you to join me every Tuesday at 12 noon, and let's move Hawaii forward. Okay, we're back, and we're still here. We're still here. I'm still talking. I'm still talking. This is a dear, dear friend of mine. Former mayor, prosecutor, and I'm gonna tell a secret because his wife wasn't supposed to know. But many years ago, we used to eat hot dogs at Costco because his wife wouldn't let him do it. Yeah, she was an accomplice to my sin. My wife wanted me to eat healthy food. Happy food, yes. So apparently she wanted me to stay around for a while. And you're still here. But we were talking about the definition, the definition of the common sense definition between suicide and what we're talking here, aid and dying. What is the difference? Well, okay, suicide is you take your own life. When you talk about the difference with that and what's going on with this particular issue, it's that there's a human intervention. And the human intervention can either be humane or inhumane. And the humane is giving the person the medication that they need. And if that leads to their death, then that was a merciful thing to do. The inhumane is causing the suffering to go on indefinitely to have all of the pain and agony as well as the loss of human dignity, which John Radcliffe is very, very concerned about and doesn't wanna lose his. And then those are the differences between the two. So there is some human intervention. And we can do it either with the patient's wishes or you can do it without those and cause somebody who does not wanna live for the last few weeks, months or a year of their life has to suffer absolutely brutally. One of the things I've learned from the original Oregon bill and the people in Oregon, so many of them took the prescription. They didn't feel it. They went to hospice or palliative care, but there was a comfort in knowing that when they reached a point or if they reached a point where they couldn't handle it anymore, that the prescription was there. And there was a comfort level and this was reported over and over and over again. I hadn't heard that. It's interesting. How many people just felt, oh, if it comes to that, I have a choice. And so many of them died without having to do that. But it was that level of comfort. You know, and we pride ourselves on being the land of the free and I can't think of any greater freedom than to choose how you're going to leave this world under circumstances that are untenable and inhumane or that are done in a dignified fashion. And so I'm interested in that particular fact and thank you for giving it to me. So I think that's what we're aiming for in choices and that's what our program is about. Choices at the end of life. I don't think that everybody has to do this but if that's what you want, you shouldn't be able to. And I think that that's what a democracy and freedom is all about. It's choices and ones that they can make. So how do we get the government out of that choice? Well, I think John's taking a big step in helping us get to that position largely because now we can make the arguments of, look, this is somebody who's obviously led a full life. He's obviously evaluated all of the options that are available to him and if he selects an option that would allow for him to be given medical assistance to pass away, he wants to make absolutely certain that that's not going to impair whoever is giving that to him as long as it's under a set of rules. And those set of rules would ultimately be the disease, the clarity of the mind of the person who's speaking to you and those would be things that could be considered. You have to have a sort of a checklist. Well, there is in the bill, there is a checklist. One of the issues that came, that has come up repeatedly all over the country, you have to have two doctors to certify that you are of sound mind and that you have reached a point where there's no other treatment that the cancer's on Egypt, in Hawaii, only in Hawaii, because of our geography, the bill says one doctor because if you live on Molokai, there's no way you're gonna get two doctors. If you live and Captain Cook, where are you gonna find two doctors? There's a shortage of doctors. So the bill says one doctor and usually that doctor has been with you through the whole treatment that understands where you are mentally, physically and what have you. So that's the difference in this bill and other bills is geography. That's interesting and it makes sense to me and you would want somebody who is, you wanna make absolutely certainly that you're making the decision and then there's not some rogue doctor who's a rogue nurse who's going in a direction that has nothing to do with a merciful way of passing and those people who show up every once in a while are routinely prosecuted and appropriately so. So I think that the proper language would probably be at least one doctor. Yeah, at least one and it is about geography. There's all of the legislators understand because they have to make that trip from the neighbor islands to the legislature. So this is not foreign. No, and particularly if it's somebody who's been, the person who's been trying to keep this alive and that person's personal doctor, obviously there isn't anything malicious about what he's going to recommend. No, no, absolutely not. And so what do we do now? How do we go from where we are, just this conversation to having this happen? What do you do? Well, I think what we need to do first now is follow this and see that it gets a proper resolution. I mean, watch, see what is done for Mr. Radcliffe and if it involves something that involved an intervention, an appropriate one, then let's see if the attorney general's office is actually going to sit there and say, okay, now we're gonna prosecute this as a manslaughter case. And my guess is that you have discretion as a prosecutor and you could sit there and look at those circumstances and say, well, we do not condone this under the circumstances. We are not planning on prosecuting anybody. I mean, you could do that in theory now. You're gonna get some washback from somebody. But the answer is that if I was sitting in that seat and this would be as a county prosecutor, not as a state one, if that crossed my desk, I would sit there and say that this is not going to be prosecuted and live whatever the repercussions were. What could, I'm not sure what the repercussions if the attorney general and again audience, a dear friend. I must say, thanks to you, he became a dear friend, Doug Chen. And I helped him get into the attorney general. And frankly, I think he'd make a great mayor too, but he probably doesn't want me to say that. Okay. That's our next step is the campaign for him to be mayor. Okay. We got it. Not me for Doug. For Doug. Yes, for Doug. So if it comes across Doug's desk, but he's already written an opinion. Well, he has to follow the law and he's given as he was required to do the warning that this faces potential prosecution as a manslaughter case. Okay. Is there discretion in the hands of prosecutors to look at the facts and circumstances of the case in its entirety and sit there and say, okay, while there's probable cause to believe that there's manslaughter under the circumstances that I see them right now is that the office of the attorney general declines prosecution. So, and I don't know whether he can do that. And if he's got some reason why he knows why I'll talk to him about it. Okay. So the idea is that it would be on a case by case basis. Yes. So that this lawsuit would only affect John Ratcliffe. Well, not, yes, but no pragmatically because this has been done now and you've seen the set of circumstances that led to it being declined for prosecution. And now you have a template that could be used to either speed up the legislative process or to be used on a case by case basis. Well, I saw the former attorney general, Louis. David. On, oh dear, on television. Insights, Island Insights. Okay. And he said, well, first he was totally against it. And then by the end of the program, he said, well, if there are enough stop gaps, enough protections built in, then he had no problem. Okay. Then that's a step, but that's progress. And I would say that John is moving us into progress by the steps that he is taking. Yeah, so I guess that if they could pull up that segment of Island Insights, they could say, well, look, he's already made it, you know. You can't, it involves all of the facts and circumstances, but it would certainly sound like somebody had made up their mind that this would now be an appropriate way of adjudicating this particular case. But that's not good enough. We need to make it. No, he wasn't talking about this case. He was talking about. In general. If there are enough reasonable stop gaps, if there's enough stuff in the bill that keeps us from being just outright manslaughter, then he didn't have a problem with it. But he needed to see all of those things. I think that makes sense, okay? So again, we're talking case by case, now expanding into sort of a legislative change without the legislative change. A legislative change without. Well, yeah, but I mean, you're basically rewriting the law. I mean, you have to follow as a prosecutor the law. And the law says, okay, you do ABC and it's simple. You know, if you do a reckless killing of somebody, it's now a manslaughter. So as a result of that, he's doing that, but he's now not getting facing the penalty part of it because of the extreme circumstances that exist in this case. And David, I think, was saying that if he saw those circumstances, then that might be something that would influence his decision. Okay, so again, we're back to the square one. Yes. What do we do as ordinary people? See, I'm 78, so, you know, we keep looking at tomorrow comes real soon. So. Oh, you're just a kid, 78, France, nothing. So when we look at what can we do to think down the road a bit? Oh, basically, right to legislators? Yeah. So that's the next. Yeah, I can tell them that, look, we're looking at this and, you know, we've had this in our family and we've had these problems and we want this resolved and we want it resolved quickly. Yeah, so we need to, so everybody out there, you heard him. We need to write to our legislator. We need to say, you need to call them. Only in Hawaii was every legislator, the governor, the mayor, all the mayors, all of the county councils, all the legislators, OHA and prosecutors, all are listed. Their phone numbers are listed. Call, call your legislator. Know where your district is. Call your legislator and tell them what you feel that you want something done. So when you reach this point, this is, your doctor's not gonna be charged with manslaughter. And then go one step further. Start discussing this with your kids, with your friends, with those people who are important to you. I mean, that's one of the things that's the beauty of what John has done is that now we're all talking about this. So, and that's, we should continue that dialogue with people we know, listen to their opinions, listen to what everybody has to say, share what you have to say. And then that has now made it such a sort of a focused issue that there will be quicker action. Well, that's what our show is about. Navigating the journey, talking about it. And I thank you. Thank you for talking with me, for talking about it. And we will see you next week.