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Of Counsel:
ALSTON HUNT FLOYD & lNG
Attorneys at Law
A Law Corporation
PAUL ALSTON
DIANNE WINTER BROOKINS
JOHN-ANDERSON L. MEYER
CANDACE M. HOUGH
1001 Bishop Street, Suite 1800
Honolulu, Hawai'i 96813
Telephone: (808) 524-1800
Facsimile: (808) 524-4591
E-mail:
palston@ahfi.com
dbrookins@ahfi.com
ameyer@ahfi.com
chough@ahfi.com

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1126-0
5944-0
8541-0
10658-0

KEVIN DIAZ (pro hac vice forthcoming)
COMPASSION & CHOICES
4224 NE Halsey Street, Suite 335
Portland, Oregon 97213
Telephone (503) 943-6532
Email:
kdiaz@compassionandchoices.org
Attorneys for Plaintiffs
JOHN RADCLIFFE, CHARLES MILLER,
M.D., and COMPASSION & CHOICES
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAI'I
JOHN RADCLIFFE,
CHARLES MILLER, M.D., and
COMPASSION & CHOICES
Plaintiffs,
vs.
STATE OF HAWAI'I;
DOUGLAS CHIN, Attorney General; and
KEITH M. KANESHIRO, Prosecuting
Attorney for the City and County of Honolulu,
Defendants.

977229vl6/12575-l

Civil No.
COMPLAINT; EXHIBITS 1 AND 2;
SUMMONS

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 COMPLAINT

Plaintiffs John Radcliffe, Charles Miller, M.D., and Compassion & Choices,
for their Complaint against the State of Hawai'i; Douglas Chin, Attorney General; and
Keith M. Kaneshiro, Prosecuting Attorney for the City and County of Honolulu, allege as
follows:
Preliminary Statement

1.

This action is brought by mentally-competent patient John Radcliffe and

medical professional Charles Miller, M.D. to establish the constitutional right of individuals to
request and receive a prescription to end their unnecessary suffering at the end of life pursuant to
the practice of medical aid in dying. Medical aid in dying is provided when a mentallycompetent, terminally-ill adult patient seeks and obtains a prescription for medication from an
attending physician, which the patient may choose to self-administer to avoid intolerable pain
and suffering associated with a medical condition that makes death inevitable. Plaintiffs seek a
declaratory judgment and injunctive relief to clarify and prevent the application of Hawai'i
criminal homicide and manslaughter statutes against physicians who, through medical aid in
dying, wish to honor their patients' desire to have the means to achieve a peaceful and humane
death. Plaintiffs' claims are based upon the patients' fundamental rights of privacy; individual
dignity; due process; equal protection of the law; and the right to seek happiness in all lawful
ways, as guaranteed by the Hawai'i Constitution and the Hawai'i Revised Statutes.
The Parties

2.

John Radcliffe is a resident of Honolulu, Hawai'i. He is a mentally-

competent adult. Mr. Radcliffe learned in June 2014 that he had incurable colon cancer that has

metastasized to his liver. He has been fortunate to successfully beat back the cancer for the last

977229vl6 I 12575·1

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few years, but recent tests indicate the cancer lesions have grown and he must continue
chemotherapy. When originally diagnosed Mr. Radcliffe had a six to twenty-four month
prognosis. As his disease progresses he wants to obtain a prescription pursuant to the practice
known as medical aid in dying so that he may have an option of self-administering medication if
and when his suffering at the end of his life becomes unbearable. He is barred from obtaining
such a prescription because he is unable to find a doctor in Hawai'i who is willing to provide
such a prescription for fear of criminal prosecution.
3.

Dr. Charles Miller is a physician who is licensed to practice medicine in

Hawai'i. He is an oncologist and is board certified in internal medicine, medical oncology, and
hematology. Although Dr. Miller no longer keeps office hours he regularly advises patients who
are suffering from cancer. If medical aid in dying were not subject to criminal prosecution he
would be willing to write Mr. Radcliffe a prescription for medication pursuant to the medical
standard of care for medical aid in dying.
4.

Compassion & Choices is a national non-profit organization dedicated to

improving care and expanding choice at the end of life. Compassion & Choices is the oldest and
largest non-profit dedicated to such advocacy and has more than 4,850 active volunteers
throughout the United States, including Hawai'i. It is the national leader in advocating for the
rights of terminally ill patients and provides free information and education to the public through
its End-of-Life Information Center and End-of-Life Consultation Service.
5.

Douglas Chin is the Attorney General for the State of Hawai'i and the

chief law enforcement officer of the State. Amemiya v. Sapienza, 63 Haw. 424, 427, 629 P.2d
1126, 1129 (1981). As such, he is responsible for exercising supervision over county attorneys
throughout the State and has the power to order and direct the prosecutors in all matters

977229v16 I 12575-1

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Mr. Radcliffe ultimately chooses to not self-administer the medication, having the prescription
and knowing that he will not have to suffer needlessly at the end of life will give him great
comfort in his last days.
15.

During his practice, Dr. Miller frequently encountered terminally-ill

patients who have no chance of recovery, to whom medicine cannot offer any hope other than a
degree of symptomatic relief. In some cases, however, even symptomatic relief is impossible to
achieve without the use of terminal sedation, a pharmacological technique that renders the
patient unconscious during the period leading to his or her death. The only choice available to
these patients, therefore, is prolonged and unrelieved anguish, on the one hand, or
unconsciousness and total loss of control on the other. Faced with such a choice, some patients
ask for the doctor's help by providing prescriptions for medication that the patients may take in
quantities sufficient to bring a peaceful end to an intolerable dying process. In these types of
situations, where mentally-competent adult patients have requested help to die, the doctor's
professional judgment may often be that providing such a prescription is medically appropriate.
16.

It is, or in light of the rights guaranteed by the Hawai'i Constitution should

be declared to be, the public policy of the State of Hawai'i to allow physicians to provide
medical aid in dying to their mentally-competent, terminally-ill adult patients who are
experiencing severe suffering at the end of life and request such assistance.
17.

Hawai'i has embraced a public policy of promoting the rights of privacy

and autonomy in end-of-life care decisions, which is reflected in Hawaii's Uniform Health-Care
Decisions Act (Modified), at HRS Chapter 327E. Under the Uniform Health-Care Decisions Act
(Modified) a patient has the right to set forth advance health-care directives with individual
instructions; "may execute a power of attorney for health care, which may authorize the agent to

977229vl6 I 12575-1

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make any health-care decision the principal could have made while having capacity," even when
doing so will cause death; and may designate an individual to act as a surrogate who "may make
health-care decisions for the patient that the patient could make on the patient's own behalf,"
even when doing so will cause death. HRS §§ 327E-3 and 327E-5.
18.

Under the reasoning of Hawaii's Uniform Health-Care Decisions Act

(Modified), there is no rational or meaningful basis to distinguish between withdrawal or refusal
of treatment for a terminally ill person and a physician's provision of medical aid in dying. Both
treatment options provide a terminally-ill, mentally-competent adult with the option of a peaceful
and pain-free death in the face of a protracted and agonizing alternative. Both options involve
affirmative medical assistance in carrying out the person's end-of-life medical care. And both
options provide patients with the ability to decide for themselves whether the inevitable
debilitating pain that they are suffering is worth enduring when death is imminent.
19.

Hawai' i has also enshrined in its statutory definition of the "practice of

medicine" citizens' rights to receive, and healthcare providers' rights to furnish, "any remedial
agent or measure," provided that a duly licensed physician or osteopathic physician has
pronounced that the "person [is] affected with any disease hopeless and beyond recovery." HRS
§ 453-1. Medical aid in dying-which involves a licensed physician providing a prescription for
medication, which the patient may choose to self-administer to avoid intolerable pain and
suffering associated with a medical condition that makes death inevitable-falls within the letter
and spirit ofHawai'i Revised Statutes Section 453-1.
20.

There is no statute that specifically prohibits medical aid in dying.

However, the Attorney General has opined that medical aid in dying could be prosecuted under
state criminal statutes. A person who intentionally or knowingly causes the death of another

977229v16 I 12575-1

7

 human being in Hawai'i commits the offense of Murder in the Second Degree. HRS § 707-701.5.
A person who does so "under the influence of extreme mental or emotional disturbance for
which there is a reasonable explanation" is guilty of Manslaughter. HRS § 707-702(2). A person
is also guilty of Manslaughter if they intentionally cause another person to commit suicide.
HRS § 707-702(1)(b). Murder in the Second Degree is a felony punishable by a sentence of life
imprisonment with the possibility of parole. HRS §§ 707-701.5 and 706-656. Manslaughter is a
class A felony punishable by "an indeterminate term of imprisonment of twenty years without
the possibility of suspension of sentence or probation." HRS § 706-659. Past and current
Attorney Generals of Hawai' i have opined that these statutes bar medical aid in dying.
21.

In 2011, then Attorney General David Louie approved a letter opinion that

suggested that criminal prosecutions may be brought against physicians who provide medical aid
in dying. See Exhibit 1.
22.

In 2015, Defendant Chin approved another letter optmon that also

suggests that criminal prosecutions may be brought against physicians who provide medical aid
in dying. See Exhibit 2.
23.

The Attorney General's interpretation, and the potential application by the

Attorney General and Prosecuting Attorney of the criminal homicide and manslaughter statutes
deter Dr. Miller and others similarly situated from providing medical aid in dying to their
qualifying patients, thereby preventing doctors from offering medical care that, in their
professional judgment, would otherwise be appropriate under the circumstances. The homicide
and manslaughter statutes are also likely to deter, in the same manner, the physicians who will
treat Mr. Radcliffe during the period immediately preceding his death.

977229vl6/12575-l

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 24.

By stating that physicians may be prosecuted criminally if they provide

medical aid in dying to competent adults and interfering in the patient-physician relationship, the
criminal homicide and manslaughter statutes, as interpreted by Defendant Chin and his
predecessor Attorney General, deny patients the right to make medical judgments affecting their
bodily integrity and health in partnership with a chosen healthcare provider, and their ability to
remain free from government interference in the process. The Attorney General's interpretation
of the statutes also denies terminally-ill patients the right to the integrity of and personal
autonomy over their own bodies; the right to decide for themselves the most fundamental
questions about the meaning and value of their lives and the intrinsic value of life in general; the
right to liberty, of which they may not be deprived without due process of law; the equal right to
form and follow their own values in profoundly spiritual matters; and the inalienable right to
seek safety, health, and happiness in all lawful ways.

Claims for Relief
25.

The application of the criminal homicide and manslaughter statutes in the

context of medical aid in dying violate the fundamental rights of Mr. Radcliffe and the
fundamental rights of other mentally-competent and terminally-ill patients treated by Dr. Miller
and others similarly situated, as guaranteed by the following provisions of the Hawai'i
Constitution:
a.

Article I, Section 6; the right of privacy;

b.

Article I, Section 5; the right to due process of law;

c.

Article I, Section 5; the right to equal protection of the
laws; and

d.

Article I, Section 2; the right to enjoy life, liberty, and the
pursuit of happiness.

977229vl6/!2575-l

9

 26.

The potential application of the criminal homicide and manslaughter

statutes to physicians who, in accordance with the medical standard of care, provide requested
medical aid in dying to mentally-competent adults with terminal medical conditions who are
confronting intractable pain and suffering near the inevitable end of life also violates the doctors'
own fundamental rights of individual privacy and due process of law, as guaranteed by the
provisions of the Hawai'i Constitution cited above.
27.

The application of the criminal homicide and manslaughter statutes in the

context of medical aid in dying violate the fundamental rights of Mr. Radcliffe and the
fundamental rights of other mentally-competent, terminally-ill patients treated by Dr. Miller and
others similarly situated, as guaranteed by Hawai'i Revised Statutes Section 453-1.
28.

The potential application of the criminal homicide and manslaughter

statutes to physicians who, in accordance with the medical standard of care, provide requested
medical aid in dying to mentally-competent adults with terminal medical conditions who are
confronting intractable pain and suffering near the inevitable end of life also violates Hawai'i
Revised Statutes Section 453-1.
Prayer for Relief

WHEREFORE, Plaintiffs pray for relief as follows:
1.

For declaratory judgment determining that HRS §§ 707-701.5 and 707-

702 are unconstitutional as applied to the acts of a physician who provides medical aid in dying
to a mentally-competent, terminally-ill adult patient facing a dying process that the patient finds
intolerable.
2.

For declaratory judgment determining that HRS § 453-1 permits medical

aid in dying.

977229v16 I 12575-1

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3.

For declaratory judgment determining that no Hawai'i statute bars the acts

of a physician who provides medical aid in dying to a mentally-competent, terminally-ill adult
patient facing a dying process that the patient finds intolerable.
4.

For an order permanently enjoining defendants and all who act in concert

with them or under their direction and control from charging, threatening to charge, or otherwise
seeking to enforce HRS §§ 707-701.5 and 707-702 against physicians in Hawai'i who provide
medical aid in dying to mentally-competent, terminally-ill patients who request such assistance.
5.

For an award of Plaintiffs' reasonable attorneys' fees and costs incurred

herein, pursuant to HRS § 632-3 and the private attorney general doctrine.
6.

For such other and further relief as the Court deems just and proper.

DATED: Honolulu, Hawai'i, January 11, 2017.

~ULALSTO

DIANNE WINTER BROOKINS
JOHN-ANDERSON L. MEYER
CANDACE M. HOUGH
ALSTON HUNT FLOYD & ING
KEVINDIAZ
COMPASSION & CHOICES
Attorneys for Plaintiffs
John Radcliffe,
Charles Miller, M.D., and
Compassion & Choices

977229v16/!2575-1

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