New Jersey Enacts Death With Dignity Law

In 2019 New Jersey joined seven other states in passing a law allowing certain terminally ill patients to end their lives by self-administering medication. Although the state legislators who passed the Medical Aid in Dying for the Terminally Ill Act” (“MAID”) were clearly well-intentioned, the strict protocol required of terminally ill patients to qualify makes it virtually impossible for patients to actually benefit from the law. A patient cannot qualify unless he or she receives a prognosis of six months or less to live. Thereafter, the process of obtaining confirmation of the diagnosis and prognosis by a “consulting physician” (that is, not the patient’s own “attending” physician), as well as satisfying the many other specific requirements under the Act, can itself take months. While being forced to jump through various hoops, the patient continues to suffer and may even pass away before the rigorous qualification process is complete. As such, the law in its current state is essentially unworkable, often depriving the patient of its stated purpose - to allow the terminally ill to die with dignity.

Legal Challenge of Law Unsuccessful

As with many assisted suicide laws, MAID has been controversial. The New Jersey Medical Society is opposed to it. Eight days after its effective date (August 1, 2019), a physician sued the state, claiming that the law violated numerous constitutional rights, as well as “the fundamental right to defend life.” A temporary restraining order was issued on the implementation of the law, but was lifted two weeks later (in late August 2019) by the appellate court. The law remains in effect.

What is a “Qualified Terminally Patient” Under the Law?

MAID allows an adult New Jersey resident who has the capacity to make health care decisions and who has been determined by that individual’s attending and consulting physicians to be terminally ill, to obtain medication that the patient may self-administer to end the patient’s life. “Terminally ill” is defined as “the terminal stage of an irreversibly fatal illness, disease, or condition with a prognosis, based upon reasonable medical certainty, of a life expectancy of six months or less.” The determination of whether a patient qualifies under the Act is not made solely by the patient’s own attending physician. Rather, a “consulting physician” must examine the patient and his or her medical records and confirm the attending physician’s diagnosis of a terminal disease in writing. In addition, the consulting physician must also verify that the patient is capable, is acting voluntarily, and has made an informed decision to request the life-ending medication.

There are specific procedural requirements that must be satisfied in order to demonstrate that the patient is making an informed decision. A patient’s request for medication to end his or life must be made three separate times; twice orally and once in writing. The two oral requests must be separated by at least fifteen days. The written request must be signed and dated by the patient AND witnessed by at least two people who attest that the patient is capable and acting voluntarily. One of the witnesses cannot be:

• Related to the patient
• Entitled to any portion of the patient’s estate
• An owner, operator, employer or resident of a healthcare facility at which the patient is receiving medical treatment; or
• The patient’s attending physician.

Upon receiving the initial oral request, the attending physician must recommend that the patient take part in consultations on treatment options. Upon receiving the second oral request (15 days later), the attending physician must offer the patient the opportunity to rescind the request. Upon receiving the written request, the attending physician must wait 48 hours before writing the prescription for the medication. Before writing a prescription for life-ending medication, the attending physician must:

• Determine whether a patient is terminally ill, is capable, and has made the request for medication voluntarily
• Have the patient demonstrate that he or she is a New Jersey resident
• Inform the patient of his or her diagnosis and prognosis, the risks associated with taking the medication, the probable results of taking the medication, and any alternatives to taking the medication
• Refer the patient to a consulting physician for confirmation of the diagnosis and that the patient is capable and acting voluntarily (and refer the patient to a mental health professional if a determination is made that the patient may not be capable)
• Recommend consultation on treatment options, palliative care, comfort care, hospice care, and pain control options and provide a referral to a healthcare professional qualified to discuss same
• Advise the patient as to the importance of another person being present when the medication is taken and that the medication should not be taken in a public place
• Inform the patient that the request for medication can be rescinded at any time and offer the patient the opportunity to rescind when the patient makes the second oral request; and
• Fulfill documentation requirements.

The life-ending medication can only be self-administered.

The Law’s Strict Requirements Make it Unworkable

While the Act’s protocol is based on legitimate concerns, its many procedural hurdles and drawn out process make it too onerous for many terminally ill patients to be able to benefit from it. Once a patient receives the poor prognosis of six months or less to leave, he or she must do all of the following:

• Make two oral requests, separated by fifteen days, for life-ending medication
• Receive counseling on treatment options, including palliative care, potentially from different healthcare providers
• In some cases, undergo an evaluation by a mental health professional to confirm competence
• Make a written request for the medication and wait 48 hours before receiving the prescription
• Provide the necessary documentation to demonstrate New Jersey residency
• Obtain a referral for a consulting physician
• Undergo an examination by the consulting physician
• Provide medical records to the consulting physician

With so many “safeguards” in place, it will be difficult for terminally ill patients to take advantage of the law and actually choose the timing and circumstances of their death.

We Stay Up to Date for Our Clients

As attorneys for healthcare providers, we keep abreast of legal developments that impact our clients. For more information on New Jersey’s Death With Dignity Act, we welcome you to contact us.