There are some lessons to be learned from this story. First, good lifetime and estate planning can put you in control of your health as well as your wealth. If the doctor had heeded his own advice, he would probably have made an advance healthcare directive such as a power of attorney for healthcare or an individual instruction about health care or both. These documents could have kept him in control of what course of life sustaining medical treatment he may or may not have wanted and would have prevented dissension in his family.

Second, because he was struck with a serious brain disease, his ability to think and communicate was greatly compromised. He could not give informed consent to accept or refuse medical treatment.

Don't procrastinate. Take care of planning for your future healthcare while you are still able to make and communicate decisions. Act now to put the legal documents in place. Don't wait until there is a crisis that forces you to make quick decisions.

Both federal and state laws and policies require that health care providers and facilities discuss a wide range of health care matters with their patients when they are admitted to a health care facility. They may ask about their patients about such matters as advance healthcare directives, do not resuscitate (DNR) orders, and even autopsies. Until recently, they would ask about organ donation but a new Hawai’i law prohibits this. These discussions are intended to inform patients about their health care choices and rights. By providing information, patients can better exercise their rights to self determination and autonomy.

While these laws are well-intentioned, the time to think about these matters is before you face hospitalization, not when you may be anxious about your condition or stressed or perhaps less capable than normal of thinking clearly. You can be in better control of your healthcare decisions when you have time to think about it in advance and you may not feel as coerced to sign a document if you have had time to carefully consider it.

Healthcare decisions begin with the concept of informed consent. An adult has a constitutional right to accept or to refuse medical treatment. (A court order may be necessary to provide certain medical procedures to minors whose religious beliefs conflict with medical practice.) With certain exceptions and limitations, modern medical practice, supported by standards adopted by state law, requires that a health care provider obtain informed consent prior to providing medical treatment. The purpose of informed consent standards is to provide a patient with sufficient information to allow a "reasonable person" to make a "prudent" choice about his or her treatment. Truly informed consent means that a person has decisional capability, that the person understands the information, that the consent is voluntary and free from coercion, and that adequate information is disclosed. As the concept of informed consent evolves, issues of consent and capacity to consent continue to interface with each other.

The State of Hawai'i Board of Medical Examiners establishes standards for health care providers in Hawai'i to follow in giving information to a patient, or to a patient's guardian if the patient is not competent, to insure that the patient's consent to treatment is an informed consent. These standards are designed to reasonably inform a patient, or a patient's guardian of:

(1) The condition being treated

(2) The nature and character of the proposed treatment or surgical procedure

(3) The anticipated results

4. The recognized possible alternative forms of treatment, including non-treatment

Medical standards do not require informed consent from a patient or a patient's guardian "when emergency treatment or emergency surgical procedure is rendered by a health care provider and the obtaining of consent is not reasonably feasible under the circumstances without adversely affecting the condition of the patient's health."

Failure to provide and obtain informed consent can lead to serious consequences and may be part of the basis of legal action against a health care provider. Following a recent court case pertaining to informed consent, Hawai'i adopted a patient-oriented standard that affects a physician's duty to disclose risk information prior to treatment. A patient-oriented standard of informed consent requires the physician to provide the necessary objective information to the patient so that as reasonable person, the patient can make informed and intelligent decisions regarding proposed medical treatment.

Patient Self-Determination Act

The Patient Self-Determination Act effective December 1, 1991 followed the concept of informed consent. The law requires that all states and most health care facilities comply with Medicare and Medicaid rules regarding patients' right to control their health care treatment. It requires Medicare and Medicaid organizations, specifically, hospitals, nursing facilities, home health agencies, hospices, and prepaid health care organizations to do five things:

(1) Provide written information to patients at the time of

admission or initial provision of services concerning patients' rights under state law to make decisions about what medical care they want or do not want, including patients' right to accept or refuse life-sustaining or life-prolonging medical treatment;

(2) Maintain written policies and procedures regarding advance directives, and provide written information to patients about what those policies are;

(3) Document in the patients' medical records whether they have executed advance directives;

(4) Ensure compliance with state law at each health care

organization which is subject to the new federal law;

5. Provide (individually or with others) for education of the

staff and community on issues concerning advance directives.

The intent of the federal law is to help individuals understand they have strong rights regarding their medical treatment and to help them exercise those rights if they so desire. It was hoped that this assistance would help avoid problems and litigation over the initiation or continuation of unwanted life-prolonging medical treatment. The federal law also forbids the health care organization from conditioning the provision of care or otherwise discriminating against patients based on whether or not advance directives have been executed. Finally, the federal law requires each State to develop a written description of State law regarding advance directives. This description is to be distributed by providers to all adult patients upon admission. In 1999 Hawaii’s laws pertaining to advance directives was changed dramatically.

The term "Advance Healthcare Directive," (sometimes shortened to "Advance Directive " or "AD" in the broadest sense, applies to all directives, instructions, or even desires that a person may communicate in writing, orally or in some other fashion concerning decisions about medical treatment and health issues relating to his or her body and life. Accordingly, such directions as declining cardiopulmonary resuscitation in advance, authorizing an autopsy or donating organs may be considered by some to be advance directives. In a stricter sense, advance directives can be defined as oral or written health care instructions directing the consent or non-consent, application, withdrawal or withholding of medical treatment, or the written appointment of an agent under a health care power of attorney to make health care decisions. In this sense, not only can they be used to direct what type of treatment a person may not want, they can also be used to provide protections for those who may feel that they are in danger from not receiving adequate care. In the past advance directives which were used to provide an individual’s instructions concerning medical treatment were called "living wills" but , since enactment of it Uniform Health Care Decisions Act (Modified) of 1999 (UHCDA), this term is being replaced by the term "individual instruction" which is less confusing.

While advance directives are generally used in the context of making end-of-life decisions, the laws of the state of Hawai'i, cover a broad range of advance directives and make it easy for individuals to have their instructions followed. One law even recognizes the right of an individual suffering from a psychotic condition to make a written declaration while he or she is in a state of remission. Through this type of advance directive, the individual can instruct his or her physician to provide medical treatment, including the administration of psychotropic drugs, if the individual has not continued to take his or her medication and the treatment would help return him or her to a state of remission.

Although written advance directives concerning life sustaining medical treatment are encouraged and preferred under Hawai'i law, they are not required. An adult or emancipated minor may give an individual instruction regarding health care. The instruction may be oral or written. The instruction may be limited to take effect only if a specified condition arises.

Virtually every state has authorized some form of Advance Medical Directive. Every state law is different and it is sometimes questionable whether an advance directive executed in one jurisdiction will be recognized in another jurisdiction. Since legislation among the states is often fragmented, incomplete, and inconsistent, conflicts with statutes of different states are common. The National Conference of Commissioners on Uniform State Laws (NCCUSL) determined that there was a need for greater uniformity in the area of health care decision-making, especially in an increasingly mobile society where advance health-care directives made in one state may frequently be implemented in another. The NCCUSL drafted a "Uniform Health Care Decisions Act" for consideration for adoption in every state. This "uniform law" takes a comprehensive approach by placing the "living will," the durable power of attorney for health care, a "family" consent law, and some provisions concerning organ donation together in one statute. In 1999 the Hawai’i state legislature joined several other states which have enacted the Uniform Health Care Decisions Act. Hawai’i has enacted a "modified’ version of the act. This modified version incorporates most of the provisions of the uniform law while incorporating several features unique to Hawai’i which will be discussed in some detail.

Advance Healthcare Directive formats used in Hawai'i under the new law should be adequate for use in most states, but some health care facilities may still be reluctant to recognize out-of-state documents. While there continues to be a strong movement toward creating uniformity among the states, it is still best to do some preventive law and check out the policies in another state ahead of the time. For example, a person who is travelling to another state may be concerned about the "portability" of his or her advance directive. Some homework can be accomplished by calling a family member or friend to find out from a health care provider or elder law attorney about advance directive guidelines in that jurisdiction.

One version of an advance directive which, by federal law, must be recognized by all states is the Military Advance Medical Directive when it is properly executed in accordance with military legal assistance guidelines. For individuals entitled to the services of military legal assistance programs, the military advance directive could prove to be most beneficial, no matter where in the United States a person travels.

Another way to make a person's desires and choices about life and death issues known, an "extended values history" may be accomplished. This is usually in the format of a document which assists you in thinking about and writing down what is important to you about your life and your health and what your attitudes are towards your living environment. Such items as your overall attitude toward life and health, the role your family and friends play in your life, your thoughts about independence and self- sufficiency, your religious background and beliefs, your current health and health problems, your thoughts about illness, dying and death, your thoughts about pain control, your thoughts about life sustaining medical treatment in the event you are no longer able to communicate, your legal preparations for death, your trusted advisors, your finances and your thoughts under what circumstances and where you would prefer to die are often included in the document. The document can be in any format of your choice and you can start by addressing the topics cited above. You can also contact organizations serving the elderly such as the American Association of Retired Persons for their formats. This values history can be useful in making an advance healthcare directive.

DNRs are orders placed by a physician with the patient's (or patient's surrogate's) consent in the patient's treatment chart. The normal action when a patient suffers cardiac or respiratory arrest in a hospital or other health care facility is called a "code." It is important to know that, in such an emergency, the patient may routinely be resuscitated unless there is a written "DNR" (do not resuscitate) order in the medical record. This order is sometimes called a "Do not Attempt to Resuscitate" or "No Cardiopulmonary Resuscitation (CPR)" order. The DNR order is only an order to forego the otherwise automatic initiation of CPR and it does not alter other treatment decisions. CPR can include such emergency medical interventions as artificial breathing, chest compressions, cardiac defibrillation (using electric shocks), and certain drugs.

In the past, in the absence of a DNR code, a patient was automatically considered to be a "full code" and all means possible would be used to resuscitate the patient. There is a new trend in modern medical practice to recognize and respect a patient's right to refuse medical treatment and that the absence of a written DNR order should not necessarily mean that all measures to keep a person alive should be taken under all circumstances. A patient's preference to refuse all or certain forms of CPR may be expressed in advance in writing and this may serve as the basis for the DNR order. The patient can designate an agent under a health care power of attorney to make such decisions. The decision to refuse CPR may also be made orally by a mentally competent patient to the treating physician. This can also serve as the basis for the DNR order. DNR orders (or "no codes") are placed in the patient's medical chart and, thereafter, emergency procedures to resuscitate the patient will not be carried out. DNR codes are often written if it is felt that future resuscitation efforts would be futile. Ethics committees of health care facilities are often asked to provide consultation on these cases.

Patients and families should also know that there are comfort measures which can be taken in the event a person suffers a cardiac or pulmonary arrest and a DNR code is in place. Since DNRs are physician's orders and have evolved in the clinical practice of medicine, they often are seen to have more in common with other medical orders such as prescriptions for medication rather than with such legal documents as the individual instruction or health care power of attorney which will be discussed later in this chapter. DNRs do, however play an important role with the legal documents in making advance planning decisions.

In some facilities "physician orders for life sustaining medical treatment" (POLSMT) are written along with the traditional "code" orders. These POLSMT orders, which may be called by various other names, are written to take into account a patient's desires and needs whether they are in a hospital or in a long term care facility. They take into consideration such matters as CPR, pain control, conditions under which a patient should be transported to a hospital for treatment, the use of tube feeding and even such specific topics as use of antibiotics.

For example, there was a resident of a nursing facility in her 80's who was in the advanced stages of Alzheimer's Disease. She began to lose weight and tube feeding was begun. She suffered from periodic internal bleeding but was not a good candidate for surgery so she was given transfusions in a hospital as needed. She weighs less than 80 pounds and now she has pneumonia. How should she be treated and would treatment be considered futile? There is a good chance that she would survive the pneumonia if she is transported to the hospital and given antibiotics. Nobody knows what she would have wanted.

"Cross-site" resuscitation codes and POLSMT instructions make treatment plans more cohesive whether a person is in a hospital or nursing facility or hospice or in a community-based treatment program. Resuscitation codes and POLSMT orders should, of course, reflect the preferences and directions found in individual instructions and health care powers of attorney if a patient has made such advance directives. Through a DNR/POLSMT order, which is made part of a patient’s medical chart, treatment, including life sustaining treatment may be applied, withheld or withdrawn and such an order does not have the same detailed, formal witnessing requirements of a typical advance directive.

The sensitive subject of resuscitation codes and emergency and life sustaining treatment in a hospital or nursing home should be addressed early on and especially in the treatment of a person with a serious illness who may be likely to have a cardiac or pulmonary arrest or lose consciousness. Learn more about these sensitive matters, including different options for your care and treatment, so that you will be prepared to discuss your philosophy about medical care with your doctor even before being admitted to a health care facility.

A good way to make your desires known concerning health care decisions, including life-sustaining medical treatment is to make an "individual instruction" in accordance with Hawaii’s new Uniform Health Care Decisions Act (Modified) or UHCDA which went into effect on July 1, 1999. The individual instruction takes the place of what was commonly called the "living will’ under old law. Individual instructions may be made orally or in writing and can cover virtually all aspects of health care.

The UHCDA defines "health care" as any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect an individual's physical or mental condition, including selection and discharge of health-care providers and institutions; approval or disapproval of diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; and direction to provide, withhold, or withdraw artificial nutrition and hydration; provided that withholding or withdrawing artificial nutrition or hydration is in accord with generally accepted health care standards applicable to health care providers or institutions. An individual instruction can be incorporated into an advance directive document which can also include the designation of an agent through a health care power of attorney, directions concerning organ donations and the designation of a health care provider. The UHCDA provides a sample form with an accompanying explanation. The sample form and the explanation are found at the end of this chapter.

In the form, choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive, including the provision of artificial nutrition and hydration, as well as the provision of pain relief medication. Space is provided for you to add to the choices you have made or for you to write out any additional wishes. This form may be modified to suit the needs of the person, or a completely different form may be used.

In addition to the "individual instruction" for health care, you should consider making a health care power of attorney (also called a durable health care or medical power of attorney). Delegating the authority to carry out your individual instructions, or to make health care decisions in the absence of such instructions, is becoming a common method of planning for the future. The UHCDA makes it easier for an individual to authorize another person (called an "agent" or sometimes attorney-in-fact," or "proxy") to carry out or to make health care decisions for you.

The sample form found in Hawaii’s new law lets you name another individual as agent to make health- care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. You may name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. Unless related to you, your agent may not be an owner, operator, or employee of a health-care institution where you are receiving care. Unless the form you sign limits the authority of your agent, your agent may make all health-care decisions for you.

The form found in the UHCDA has a place for you to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health-care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right to consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition; select or discharge health-care providers and institutions; approve or disapprove diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; and direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care.

As with the individual instruction, discussed previously, you should be clear as to your intentions about life and death issues when you execute a health care power of attorney. You should grant a person power over your health care decisions only if you understand the consequences and finality of your agent's actions concerning life and death decisions and you feel you can trust your agent. Most people will execute a form that includes both an individual instruction and the designation of a health care agent but you do have a choice to include one or the other or both. If the form only includes an individual instruction, it does not have to be witnessed. If the form includes the designation of a health care agent, then you must sign and date the form at the end and have the form witnessed by one of the two alternative methods provided in the new law. The power of attorney will not be valid for making health-care decisions unless it is either signed by two "qualified" adult witnesses who are personally known to you and who are present when you sign or acknowledge your signature; or it is acknowledged before a notary public in the state. A witness for a power of attorney for health care cannot be:

(1) A health-care provider;

(2) An employee of a health-care provider or facility; or

(3) The agent.

At least one of the individuals used as a witness for a power of attorney for health care must be someone who is neither related to the principal by blood, marriage, or adoption; nor entitled to any portion of the estate of the principal upon the principal's death under any will or codicil thereto of the principal existing at the time of execution of the power of attorney for health care or by operation of law then existing.

Give a copy of the signed and completed form to your physician, to any other health-care providers you may have, to any health-care institution at which you are receiving care, and to any health-care agents you have named. You should talk to the person you have named as agent to make sure that he or she understands your wishes and is willing to take the responsibility. As with other powers of attorney intended to be used in the event of disability, make sure that you consider designating alternate attorneys-in-fact in case your first choice is unwilling or unable to act on your behalf.

What happens when an appointed health care agent refuses to comply with the known desires of a principal or that the agent is acting contrary to expressed directions? First, you should remember that agents do not have to take on any responsibility just because they are appointed as an agent. However, if they do act under the authority of a power of attorney, they are supposed to act on your behalf.

Next, try to ensure that your agent is trustworthy and understands your directions. To avoid difficulty, you may wish to make your intentions very clear. If you make an individual instruction, you may wish to tell your doctor that your desires as expressed in your individual instruction are to be followed, of course, and that you have instructed your agent accordingly. You may even want to write an extended values history and request that friends or family oversee the actions of your agent to ensure that your desires are carried out.

Finally, you can let family and friends know that they can call the Adult Protective Services to file a report if they feel you are being abused by your agent. As will be discussed the chapter on elder abuse, the Department of Human Services can investigate allege incidents of abuse of a dependent adult. Abuse of a power of attorney can be a basis to determine that a dependent adult is being abused. Also remember that you always have the right to revoke the authority of your agent by notifying your agent or your treating doctor, hospital, or other health care provider.

Make certain that your advance directive is placed in your medical file or files, if you have more than one. This is your responsibility. In case of an emergency that requires a decision concerning your health care, make sure that you keep a copy where it is immediately available to your agent and alternate agents. You can give each of them and your doctor a copy of this document. We have included a sample form with accompanying explanation at the end of this chapter. Remember, it is your responsibility to ensure that copies of these documents are placed in your medical file.

The health care power of attorney for health care is highly recommended for unmarried couples or partners who wish to give each other power to make medical treatment decisions for each other. This type of document may provide the authority necessary to make health care decisions and gain access to information about the partner's care and condition and even, perhaps, the right to visit.

The UHCDA makes it clear that an individual may revoke an advance directive, including a healthcare power of attorney. However, an individual may revoke the designation of an agent only by a signed writing or by personally informing the supervising health-care provider. An individual may revoke all or part of an advance health-care directive, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke. A health-care provider, agent, guardian, or surrogate who is informed of a revocation shall promptly communicate the fact of the revocation to the supervising health-care provider and to any health-care institution at which the patient is receiving care. A decree of annulment, divorce, dissolution of marriage, or legal separation revokes a previous designation of a spouse as agent unless otherwise specified in the decree or in a power of attorney for health care.

Advance directives are not generally used to make emergency resuscitation decisions although they may be used as the basis to withhold CPR attempts in cases where a person has been determined to be in a condition as stated in their advance directive. Traditionally, DNR codes only applied in situations where a person is a patient in a health care facility. However, there is a law which has been in effective since 1995 which allows a terminally ill person in the community to state in advance that he or she does not want to be resuscitated in an emergency if he or she meets the following requirements:

The written document containing both certifications must be signed by the patient with the terminal condition, by the patient's physician, and by any one other adult person who personally knows the patient.

Efforts are being made to change this law to permit individuals to choose to refuse resuscitation even if they are not certified to be terminal. There is also a movement to change the law to consider such decisions as an individual’s advance directive rather than a doctor’s prescription.

Other laws that impact on decision making are the surrogate decision-making or family consent laws found in most states. Historically, health care providers have turned to family members for consent in situations where an individual is no longer capable to make decisions and no advance medical directive has been made nor any guardian has been appointed. This traditional approach in caring for one's own family members has been considered to be an accepted "community practice" in the health care community. However, there has been a growing sense that this community practice is no longer legally adequate.

Due to the increase in federal and state regulation of the health care industry as well as an increased emphasis on preserving the autonomy of our citizens, laws were introduced to clarify and extend this practice. The phenomenon of the increasing numbers of elderly citizens with chronic conditions, often accompanied an inability to make medical decisions is now forcing the community to reconsider how to make choices in medical decision-making in day-to-day situations and not just in life-sustaining or life prolonging situations.

Federal regulations promulgated by the Health Care Financing Administration for long term care nursing facilities have been interpreted by regulators as requiring any facility resident determined to be decisionally incapacitated to have his or her rights exercised by a person appointed in accordance with state law to act on a resident's behalf. In cases where a resident has not been adjudicated incompetent by the state court, the regulators go on to indicate that any legal surrogate designated in accordance with state law may exercise the resident's rights to the extent provided by state law. Historically, Hawai'i did not have a statute which would provide for surrogate decision-making in the absence of prior health care instructions (except, for limited purposes under the living will statute). Regulators concluded that, unless additional laws are enacted to recognize decisions by surrogates, guardianship actions in court may be required. Threats of citing facilities for non-compliance increased. In 1997 Hawai'i took the first step to join the majority of states which recognize and permit surrogate decision-making by a family member or other individual in order to make necessary health care decisions on behalf of their incapacitated loved ones. This law gave legal surrogates certain powers and responsibilities but had limited applicability and "sunsetted" and was replaced with the surrogate provisions under the UHCDA, effective July 1, 1999. It should be noted that the surrogate provisions under Hawai’i's UHCDA are not the same as those found in other states which have enacted versions of the Uniform Health Care Decisions Act. The Hawai’i' legislature decided to modify the surrogate provisions and some of the modifications seem to be unclear.

Under the UHCDA (Modified) surrogate provisions, a patient may designate or disqualify any individual to act as a surrogate by personally informing the supervising health-care provider. In the absence of such a designation, or if the designee is not reasonably available, a surrogate may be appointed to make a health-care decision for the patient. A surrogate may make a health care decision for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available. The process of appointing a surrogate is somewhat complicated under Hawaii’s modified version of the UHCDA.

Upon a determination that a patient lacks decisional capacity to provide informed consent (or refusal) for medical treatment, the primary physician or the physician’s designee first needs to make "reasonable efforts to notify the patient of the patient's lack of capacity." The primary physician, or the physician's designee, then must make reasonable efforts to locate as many "interested persons" as practicable, and the primary physician may rely on such individuals to notify other family members or interested persons. Under this new law "interested persons" means the patient's spouse, unless legally separated or estranged, a reciprocal beneficiary, any adult child, either parent of the patient, an adult sibling or adult grandchild of the patient, or any adult who has exhibited special care and concern for the patient and who is familiar with the patient's personal values.

Upon locating interested persons, the primary physician, or the physician's designee, must inform such persons of the patient's lack of decisional capacity and that a surrogate decision-maker should be selected for the patient. Interested persons are to make reasonable efforts to reach a consensus as to who among them shall make health-care decisions on behalf of the patient. The person selected to act as the patient's surrogate should be the person who has a close relationship with the patient and who is the most likely to be currently informed of the patient's wishes regarding health-care decisions.

If any of the interested persons disagrees with the selection or the decision of the surrogate, or, if after reasonable efforts the interested persons are unable to reach a consensus as to who should act as the surrogate decision-maker, then any of the interested persons may seek guardianship of the patient by initiating guardianship proceedings. Only interested persons involved in the discussions to choose a surrogate may initiate such proceedings with regard to the patient.

A surrogate who has been designated by the patient may "make health-care decisions for the patient that the patient could make on the patient's own behalf." In other words, a "designated surrogate" may make all decisions for the patient.

A surrogate who has not been designated by the patient "may make all health-care decisions for the patient that the patient could make on the patient's own behalf, except that artificial nutrition and hydration may be withheld or withdrawn for a patient upon a decision of the surrogate only when the primary physician and a second independent physician certify in the patient's medical records that the provision or continuation of artificial nutrition or hydration is merely prolonging the act of dying and the patient is highly unlikely to have any neurological response in the future." This particular provision is subject to interpretation and reinforces the notion that an individual should appoint an agent through a health care power of attorney or designate a surrogate if the person wishes to grant another person the power make health-care decisions for the patient that the patient could make on the patient's own behalf. In other words, a "non-designated surrogate" has certain restrictions on making health-care decisions about "tube feeding."

The surrogate who has not been designated by the patient shall make health-care decisions for the patient based on the wishes of the patient, or, if the wishes of the patient are unknown or unclear, on the patient's best interest.

The decision of a surrogate who has not been designated by the patient regarding whether life-sustaining procedures should be provided, withheld, or withdrawn shall not be based, in whole or in part, on either a patient's preexisting, long-term mental or physical disability, or a patient's economic status. A surrogate who has not been designated by the patient must inform the patient, to the extent possible, of the proposed procedure and the fact that someone else is authorized to make a decision regarding that procedure.

Whether the surrogate is a "designated" or "non-designated" surrogate, a health-care decision made by a surrogate for a patient is effective without judicial approval and the supervising health-care provider will require a surrogate to provide a written declaration under the penalty of false swearing stating facts and circumstances reasonably sufficient to establish the claimed authority.

The legislature’s modification of the surrogate provisions of this "uniform" law makes it even more crucial for an individual to consider designating an agent in a health care power of attorney or, at a minimum, designating a surrogate by informing the supervising health-care provider.

Generally speaking, under state and federal law, all individuals in Hawai'i have a right to have access to their medical records, whether they are being held by a physician licensed in the state of Hawai'i, a federal doctor, a private, state, or federal hospital, or other health care facility. There are exceptions, of course. For instance, the laws do not apply to nursing institutions. Further, if a doctor feels that releasing the medical records would be detrimental to the health of the patient, he or she does not have to release them. Under such circumstances, the patient may need an attorney's help in obtaining the records. Of course, a person asking for copies of his or her medical records may have to pay reasonable expenses incurred by the health care provider in getting copies made.

Under a new law in Hawai’i the privacy rights of individuals was greatly enhanced. The Privacy of Health Care Information Act took effect July 1, 2000. The law is intended to balance the protection of an individual's right to privacy of his or her health information with the desire to promote an effective exchange and transfer of health information for appropriate and authorized purposes. The law applies to, among others, employers, educational institutions, and health care providers. One requirement is for entities to provide a notice consistent with the provisions of the law. The law as originally written is confusing to many and efforts are being made to clarify its provisions.