 Aloha, I'm your host, Marcia Joyner, that's who I am, 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 to talk about their wishes. It's time to transform our culture so that we shift from not talking about dying to talking about it. It's time to share the way we want to live at the end of our lives. And it's time to communicate about the kind of care we want and don't want for ourselves. We believe that the place for this to begin is not in the intensive care unit. Together we explore the various paths to life's endings. 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. So if you're ready to join us, we ask, navigate the journey. As you know, we are supporting legislation to have medical aid in dying made legal in Hawaii. Therefore we have invited Doug Chen, the state's attorney, to talk about the legal issues with the bill. Most of our audience knows Doug as the state's attorney general who pursued legal action regarding President Trump's new travel ban. So he's our new hero. And welcome, Doug. Thank you for having me on the show, appreciate it. I absolutely love Doug when the new mayor, Peter Karla, became mayor and Doug was his managing director. And I was working at the city council. And so as protocol that we said, I said to Doug, I will come over to meet you. And he says, no, no, no, no, I will come to you. And he did. He came to all of the people in the city council, introduced himself, that he was the new managing director. And for anybody that doesn't know, the city has three branches of government like everything. The mayor's office, the city council and the court council, equal branches. And until Doug came along, they weren't equal. But once he came along, the working relationship seemed more better equal. Great. I'm glad you felt that way. I wanted to do my best. Yes. Thank you. So today we are going to talk about this bill, medical aid and dying. And I'm not going to ask you to take a position, which I understand that because of your position as the state's attorney general, you cannot. But you can talk to us about what is in the bill, what are the processes that we go through with the bill, and what do we look for, what do you look for in the bill? Sure. Okay. Sure. Yeah. Thank you for the opportunity to talk about this. And I think essentially what I would say is what physicians and medical care providers were looking for was some sort of legal authority or legal ability if they chose to help someone with the dying process. I'm probably not going to use the right terminology when I talk about it. That's all right. There are different ways to refer to it. But with the aid and dying process, I think medical care providers, whether they were doctors or nurses or people who were involved in the process, they did not want to be held criminally or civilly liable for their actions. And so as it turns out, for as long as Hawaii has had a penal code, which is part of, and I've got to say that dates back to the model penal code, there is a provision under the manslaughter statute, which says that just in a regular circumstance, if somebody intentionally assists somebody in causing them to commit suicide, that's considered manslaughter. Now, I realize that's not what these people are thinking about or trying to accomplish, but that's just the traditional language that's already been there. So what I see is that this is an effort to give medical care providers the protection and the comfort level that they need in order to be able to do this. Which then in turn helps the patients if they want something like this, then they're able to seek out this kind of assistance without having to do it illegally or in a way that's unsafe. So there's so many things that, first of all, let's go back to sedation, terminal sedation. Now, that's legal. Terminal sedation is when the doctor prescribes morphine or whatever. I don't know all the drugs, so if I get that wrong, I don't know. And I'm not a doctor, but I understand what you mean, meaning that there's a way that they can sedate them until they're gone. That's legal. So how is it that this is the same thing and it's not legal? Right. And I think there is a fine line that's there, but I think doctors take the, again, I'm not a doctor, but I've heard them talk about their, share their testimony and just what's important to them. And really, part of the mission of people who are medical care providers, and let's just say doctors, is that they're always going to want to be able to save lives and protect lives. And so here you have a situation where somebody is seeking to end their life and they're seeking to do it in a way that's humane and that allows them to pass on with dignity. But I think for certain doctors, they will draw a line between sedation and then actually prescribing or assisting somebody in causing their death. So it's a subtle difference, but it's there. Yep. So if you take a note that you will do no harm, letting a person suffer when you can do something that's humane, is that, I mean, to me, that's a real fine line. Right. Oh, and I think that's definitely what I've heard from the advocate. I mean, let me just start off by saying this. I think through this whole, particularly this legislative season, it's been so, you know, fascinating and moving just to hear people on both sides of the issue talk about this. But I think that's definitely something that people who are advocating for this bill to pass are saying, which is that there's so much suffering that involves and so much loss of dignity that occurs because they're just being kept alive without any sort of pleasures or just the ability to just enjoy their life anymore, that they want to be able to make that choice for themselves. Well, yes. And I think that's where we're coming from, is that we, the Bible says we have a free will and we can make choices. Our Constitution says we have the right to make choices. We have the right to privacy and that we can do these things. And yet there's this whole thing that says, no, you can't do that. Right. You know, I got to say, even when I was in law school, it was 22 years ago, but when I was in law school, I remember that this was, and I think this was back in the time of Karen Ann Quinlan. I mean, because I was back in the 70s, but I was around in law school by the time that case had gone through. And so this has been an issue for a generation. I mean, I think people have really talked about this. I've never seen it develop within the Hawaii State Legislature as much as it has to even get to this point. But I think people have always wanted to understand, you know, how do we draw that line? And I think this is such a fascinating issue. Well, now, John Ratcliffe, which all of our audience knows because we've talked to John for any number of times, he filed suit against you. Yeah, he should have. But I love him anyway. Exactly. It's just a legal battle. It's just the way the litigation works. Yeah. Okay. So what about the lawsuit? Sure. Okay. So that's, thank you. That's a good question. So what they're focusing on is just the ability, what happened was I had written an opinion and also my predecessor had written an opinion saying that there's nothing in our current law. So right now we've got legislation, but right now we've got a current existing law. Nothing in our current law that would stop a prosecutor, whether it was me or whether it was another county prosecutor or someone who came after me from prosecuting somebody for manslaughter. Now I'm not saying that we would, but I'm saying that that possibility is out there. So I can understand why, with that possibility out there, it's very difficult for medical care providers, let's say doctors, to be able to agree then because they don't know what's going to happen to them if they were to help assist somebody in the dying process. So anyway, what they're seeking in the lawsuit is they want a court to say, no, you cannot, you prosecutors wouldn't be able to take that kind of action. They're seeking some sort of declaratory relief. That's the legal charge for it. To protect the doctor. Correct. It's okay. And in doing so, it then allows Mr. Radcliffe, who's a wonderful man, to be able to get the assistance that he needs and know that they can do it with the comfort that they're going to be not held criminally or civilly liable. Okay, so now it looks like, of course, that the legislation is moving faster than the lawsuit. Right. Which kind of makes sense. In other words, I mean, so I'll tell you my position, which is that I actually think this is this, rather than having the courts just come out with some sort of ruling, I think it's really better to have the policy people, the people's representatives, you know, make that decision, you know. But that's just me. So I think they're pursuing it on two paths and you're correct. The legislation is moving faster than that. So even if you moved you, the court, would that just protect this one case or would it be for future cases? That's a good question. It would just be for this case, but I'm sure that people would then use this case as, you know, let's assume Mr. Radcliffe were to prevail, then it would be just for Mr. Radcliffe, but that kind of declaratory action would be a precedent for future cases. We have to go to a break and when we come back I want to ask you a lot of questions about what happens, should the bill pass? What happens next? Okay. Okay. Great. Thank you. Hi. I'm Stephen Phillip Katz. I'm a licensed marriage and family therapist in Hawaii and I do a show called Shrink Rap Hawaii where shrinks and sometimes other people come on and talk about the art and science of psychology, talking to people, relationships. So if you are curious about shrinks and want to be shrunk and don't know where to go, tune in to Shrink Rap Hawaii. All right? All right. Thanks for watching Think Tech Hawaii and look forward to seeing you at Education Matters on Tuesday with me, Carol Mon Lee. You're watching Think Tech Hawaii, Hawaii's leading digital media platform for civic engagement, raising public awareness on tech, energy, diversification and globalism. Great content for Hawaii from Think Tech. Aloha. This is Kaili Akeena with the weekly Ehana Kako. Let's work together, program on the Think Tech Hawaii broadcast network Mondays at 2 o'clock PM, movers and shakers and great ideas. Join us. We'll see you then. Aloha. Hi. We're back. And today we are visiting with Hawaii State's Attorney General. What a title. Yeah, I know. That would be great. And we're talking about the medical aid in dying bill. So as the Attorney General, what is it in the bill that you are looking for? Okay. You know what, I would say from a law enforcement perspective, I'm looking for clarity. In other words, what we really want to do is if the policy makers are going to, meaning the legislators and the governor say, we're going to let this bill go through, then as a law enforcement person, what I want to do is I would want to make sure that the good actors are protected and that bad actors are prosecuted. And I think that that would be what I'm looking for is a clarity within the law that makes sure we're separating out the good actors and the bad actors. Good actors being, those are the people who are not taking advantage of the situation or anything like that. They genuinely believe in what this policy is all about. Bad actors would be the people who perhaps take advantage of somebody and it leads to the death of someone because of that. That would actually not be good at all. And so I think we would want to make sure that we have the ability to prosecute those people. And Bill, it talks about coercion. Sure does. Yes. So who at us at work? What is coercion? Right. Well, what you wouldn't want is you wouldn't, and I realize that this is kind of a nightmare, worst case scenario, but what you wouldn't want is somebody who is coerced or pressured into saying, I think all, my relatives don't really want me. I don't want to be around. I'm discouraged and depressed because I'm causing such a burden to everybody, so maybe I should just end my life and I'll find a doctor to be able to do that for me. And so what you wouldn't want is some, what the law relies upon is the judgment of medical care providers to be able to talk to these patients and make sure that their decision is voluntary, that it's based upon a terminal illness, that there are certain protections in place. So we all have to rely upon those medical care providers to make the right judgment. And so what I, and I can trust that there are great medical care providers that could do that. I think the big thing is just to make sure that they're not, you know, the bad actors who would then sanction something like this, even though it's not really what the patient voluntarily wants. Well, you know, quote, bad actors, if they really want to do something, they'll find a way to do it. They do it all the time. For instance, with hospice, if they are with the patient, the bad actors, and there's no nurses, nobody around, and they give them something and the person dies, hospice has the final say, they sign the death certificate, there are no autopsies, nobody knows. So if a bad actor really wants to do something, there's an opportunity, they will find a way. Right. Right. You're right. So you're correct that the law will never be able to, you know, there's always going to be bad actors out there. Yes. So you're right. So I think the thing that I would be looking for is just to make sure that if those bad actors ever were to do something, then we would have the ability to prosecute them and they wouldn't just be able to say, oh, well I'm protected though because of this, because of these laws. So I do see the legislators working very hard, because we're on second draft, third draft of this, and I can see that they are really doing, I mean, really putting in a great effort trying to work with the language just to try to get it right, and I applaud them for doing so. I applaud people like you for, you know, holding their feet to the fire as well as all the people who have testified on this issue. Let's talk about the safeguards now. Sure. To protect not only the patient, but everybody else involved. Yes. Yeah. What are you, you're looking at safeguards. What do you look for? Right. Well, you know, I think the, I see two things. I think for the patient, it's got to be that they have a terminal illness and that they are, they're making a voluntary, you know, clear-minded, you know, walking into it with eyes open decision. Yeah, I think that that's what, I'm kind of using lay terms to talk about Yeah, that's fine. Which is good. Yeah, but he's too much legalese, but that's, I guess, that's what I'm trying to say is that you want to have a patient who, you know, who has a strong, you know, self-will, strong understanding of that. So that's the protection for them. You want to make sure that that's going on. And then for the medical care providers, whether it's, you know, the doctors or whoever is attending or consulting with them, you want to make sure that they're licensed, that they, you know, that they have the professional ability to make a diagnosis that's proper. And then also that they, you know, they end up having to vouch for the fact that this person is making a voluntary decision. So that's, and that's a very, you know, that's an important role that they need to play. And it's why we, you know, appreciate people who go into the healthcare profession, because I'm sure it's something that they have to live with and work with all the time. Yep. When we look at these, quote, safeguards, we assume, and I have to assume that the primary care person has been with this patient through the process of the treatments, the ailment as it has progressed. So we have to assume that they really are in touch. Yes. That, I mean, at least my relationship with John Radcliffe, he's had the same doctor for 15 years, you know. So this doctor knows where he is emotionally, physically, the whole thing, so he can make this judgment. Now let's talk, and I assume everybody has that. You know, and I would say that I think if the law were to pass, that would be the best case scenario, right? That would be something where at least we could have some level of comfort. Yes. That there's been a long-time relationship. This person really knows what they're talking about. They really understand the patient's needs and concerns, you know. And so the other extreme would be something where you feel like someone just came in at the last minute and just, you know, signed it. But if you have a terminal illness, nobody shows up at the last minute. Sure. I've been down this road for a while. Right. Yeah, terminal illnesses don't just show up. Right. I mean, if you have pneumonia, two days later, you know, anything like that. Let's, and let's talk about this as a, not only the physician, but the advanced practical, advanced practice, RRNs, registered nurses. Okay, okay, sure. Right. Right. In Hawaii. Yes. That had passed across the country, say, two physicians. But in Hawaii, because of our geography, you can't always come up with two physicians. Right. And a lot of cases in rural Hawaii, the nurses, advanced practice, registered nurses, are the primary care. So we propose that amendment, and I think it's in this last draft. But I want to talk about that. So people understand this isn't just an RRN. This is a real practice. An advanced practice, RRN. Yes. And in rural Hawaii, so many of them have their own practice. Right. Okay. Yeah. Yeah, thank you for bringing that up, because I think that's from a legal standpoint, that is something that's more unique about this current Hawaii law, its current draft. So a lot of the draft is based on model language from some of the few other states that have passed this law on the West Coast. That's great. Where Hawaii is a little different, and it's because of the rural concern that you brought up, is they've also added in the ability for advanced practice registered nurses to be able to make certain decisions. What I see in the most recent draft is that what they've done is you have an attending person that decides, and you have a consulting person that decides, two different people that make the decision to sign off on the ultimate decision. And so what they've done is they've allowed the advanced practice registered nurse to still be able to make that decision for one of them. I think the attending. I think on the attending part, the advanced practice registered nurse can do that, but not on the consulting portion. So what I see there is that the legislators are trying to balance out the rural concern along with the concern that maybe advanced practice registered nurses shouldn't be the only ones that are making this decision. Well, but if you live in Molokai, Lanai, Captain Cook, where are you going to find an extra doctor? Right. I hear you. And that's where I think that there's an effort to try to accommodate that kind of situation. So that's all I'm saying is that I think you're pointing out an interesting part of our current bill that is unique and we'll see how our decision makers decide to play that out. Okay. Now, let's assume that it passes the governor signs it because he said he would. What he did? Okay. So what happens, it goes to you and you look at the legalese to make sure it's right. Now what happens then? How do we put this into practice? What goes next? Right. You know, I think there's a rules component that is part of this legislation which would have to occur. So in other words, once the bill, if the bill passes and it's signed into law, then part of this bill includes a portion for the Department of Health to come up with a little bit more of a framework to be able to make all this happen. What's the form going to look like? What's the process going to look like? But that would be part of the government's responsibility to be able to put this law into implementation. So that goes to the Department of Health. And do you have anything, any input before it goes there? Yeah. I mean, we'll be tracking it all the way. In other words, we're tracking it right now, trying to help out legislators with their questions as they're trying to work with the drafts. And then we'll be available for the governor if he has any questions about the bill legally, if he has to make a decision. And then ultimately, we'll be there to help out the Department of Health. We're the state's lawyers, so that's what we do. Well, great. Well, it's been a real pleasure being with you as always. Marcia, you're awesome. It's always been a pleasure. And we will see you again before this is over. I'm sure. Okay. Keep me accountable on this. So that's great. I love it. Yeah. Thank you so much for coming. Great. And we will see you again soon. Great. Thank you, Marcia. Thank you.