Under current Hawaii law, patients making a health care decision have the right to “informed consent.”[1] This includes the right to be supplied with information concerning “recognized alternative treatments” and their “recognized benefits.” Hawaii's Informed Consent Statute, HRS § 671-3(b), states:
The following information shall be supplied to the patient . . . prior to obtaining consent to a proposed medical . . . treatment . . . .
(4) The recognized alternative treatments or procedures, . . . and . . .
(6) The recognized benefits of the recognized alternative treatments or procedures. (Emphasis added).[1]Under SB 1129 SD 2, patients instead have the right to an “informed decision.” Instead of having the right to be told of recognized alternative treatments and their benefits, the patient will have the right to be told of “feasible alternatives,” all of which have to do with death and dying. SB 1129 SD 2, § -2, states:
"Informed decision" means a decision . . . that is based on an appreciation of the relevant facts and after being fully informed . . . of . . .
(5) the feasible alternatives, including but not limited to comfort care, hospice care, and pain control. (Emphasis added).[2]With this language, the patient no longer has the right to be told of “recognized alternative treatments” and their “recognized benefits,” for example, to cure cancer. This is due to the rule of statutory construction, ejusdem generis.
Under the rule, a general reference in a statute only applies to the same kind of things specifically listed.[3] SB 1129 SD 2, § -2, has a general reference to “feasible alternatives” and also refers to a list of specific alternatives: “comfort care, hospice care, and pain control.”
Per the rule, these specific alternatives, all having to do with death and dying, limit “feasible alternatives” to those involving death and dying. Under SB 1129 SD 2, patients no longer have the right to be told of “recognized alternative treatments” and their “recognized benefits,” such as a cure for cancer. With SB 1129 SD 2, they lose that right.
Footnotes
[1] HRS. § 671-3 can be viewed in its entirety at this link: https://maasdocuments.files.wordpress.com/2017/03/671-3-informed-consent1.pdf
[2] SB 1129 SD 2, at http://www.capitol.hawaii.gov/session2017/bills/SB1129_SD2_.PDF
[3] See http://dictionary.law.com/Default.aspx?selected=607
