The Alaska Legislature passed the Alaska Health Care Decisions Act in 2004, and it was subsequently signed into law by then-Governor Frank Murkowski. It outlined protocols relating to do not resuscitate (DNR) orders to be developed by the State Department of Health and Social Services and implemented by health care providers.

At the time, pro-life law makers were concerned that the language of the bill could lead to outcomes that came dangerously close to legalizing the termination of human life. So Senator Fred Dyson, Chair of the Senate Committee on Health and Social Services, along with Lt. Governor Loren Leman and the American Catholic Conference, worked to amend the legislation by inserting language that ostensibly protected the right of a patient to make his, or her, own decisions relating to end of life issues, offering a presumption of life in the absence of a directive, and making it abundantly clear that the law did not authorize any form of “mercy killing,” “euthanasia,” or “assisted suicide.”

Notwithstanding that, some health care providers in the State of Alaska are abusing terminally ill patients by denying patient choice based on a presumption of statutory authority for a doctor to unilaterally place DNR orders on a patient against his own will, and that of his designated legal surrogate. Backed by the expertise of so-called “ethics committees” acting as death panels, these institutions have empowered doctors in their employ to play God, and apparently there is no recourse. The Alaska Health Care Decisions Act offers immunity to health care providers against charges of assisted suicide, or homicide, in such cases.

I have personally assisted a family member whose loved one was unilaterally designated DNR by a doctor at a local Anchorage hospital with the full blessing of the institution’s “ethicist.” Because the family refused to sign a statement of assent, the hospital subsequently denied them other medical services. AS 13.52.065 was cited as the legal authority for the hospital’s “right to allocate its resources as it will.”

While I am a pro-life Alaskan who believes that life is the supreme value and is its own quality, those who are pro-choice should be no less outraged that patients and their legal surrogates are being denied the right to make health care choices. It is an outrage that Alaskans would be subjected to these “death panels” masquerading under the guise of a false ethic of compassion. Warning – Alaska’s DNR program operates under the innocuous title of Comfort One.

I would like to believe that what we are dealing with is a rogue institution wrongly interpreting the statute, but my research, and subsequent legislative testimony by other health care providers, leads me to believe otherwise. Unfortunately, the language relating to the patient’s right is tucked away in a section of the law dealing with the patient’s capacity to make decisions, setting the bar high, and failing to address legal surrogates. At the same time, it specifically authorizes a physician with charge of a patient to unilaterally place a DNR order, specifying that it is irrevocable unless revoked by a physician.

Attorney Kenneth Kirk, writing in the Alaska Law Review, concluded that “the Alaska Health Care Decisions Act purports to be based on the right to self-determination, combined with a concern for the sanctity of life. Instead, it has been infused with enough loopholes such that doctors and surrogates can terminate lives, even of the unwilling, based on their own philosophical convictions.” Kirk went on to suggest that the law does not comport with the legislature’s philosophical intent.

The Legislative Legal Department of the Alaska Legislative Affairs Agency has released an opinion on the Alaska Health Care Decisions Act, affirming that the law protects patient choice and a presumption of life.  However, the opinion also confirms that the language of the law is ambiguous enough to abide other interpretations.

There is no doubt that these misinterpretations of the Alaska Health Care Decisions Act, whatever the legislature’s initial intent, are being leveraged to the detriment of vulnerable Alaskans.  It is, therefore, incumbent upon the Alaska State Legislature to act.  Senator Fred Dyson, along with Democrat Senator Betty Davis, have crafted a bi-partisan bill that seeks to close the loopholes in the law and protect patient choice.  Please call your legislators and urge their support of SB172.

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