Lethal Prescriptions Now Available For New Jersey’s Terminally Ill

Elderly-Patient

On July 9, 2019, New Jersey adopted a “Right to Die” Law.  It gives terminally ill adults the right to request a fatal prescription for themselves, specifically to enable them to medically own their own life.  The new law, whose formal name is the “Medical Aid in Dying for the Terminally Ill Act”, becomes effective August 19. 2019.  In addition to those who are gravely ill and their families, the law will impact physicians, health care facilities, other medical professionals, insurers, and estate planners.

Who is Covered by the Act

The option to obtain the fatal dose is available to:

  1. New Jersey Residents who are
  2. Over the Age of 18; and
  3. Are “capable”
  4. And have been determined by the patient’s attending physician and a consulting physician to be terminally ill.

The option is not available to minors; nor to those who are severely disabled but not “terminally ill”; nor to those who are extremely old but not terminally ill.  The phrase terminally ill under this statute is quite specific: “Terminally ill” means that the patient is in 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 Complicated Steps Before a Prescription for the Lethal Dose May Be Issued

Even for patients who meet those four qualifications, obtaining a lethal dosage of medicine to self-administer, requires multiple steps, multiple requests by the patient and multiple medical evaluations.  These steps must take place over a minimum of two and a half weeks.

Response to a Patient’s First Oral Request For a Lethal Dose.

When the patient first makes an oral request for the “self-administered” medication, the attending physician must:

  1. make the initial determination of whether a patient is terminally ill, is capable, and has voluntarily made the request for the lethal dose of medication; and
  2. ensure that the patient demonstrate New Jersey residency (usually by showing a driver’s license); and
  3. inform the patient of: the patient’s medical diagnosis and prognosis; the potential risks associated with taking the medication to be prescribed; the probable result of taking the medication to be prescribed; and the feasible alternatives to taking the medication, such as concurrent or additional treatment opportunities, palliative care, hospice care, and pain control; and
  4. refer the patient to a consulting physician for medical confirmation of the diagnosis and prognosis, and for a determination that the patient is capable and acting voluntarily; and
  5. refer the patient to a mental health care professional, if there are questions of the patient’s capability to make this decision; and
  6. recommend that the patient participate in a consultation concerning concurrent or additional treatment opportunities, palliative care, comfort care, hospice care, and pain; and
  7. offer the patient a referral to a health care professional qualified to discuss these options with the patient. If the patient chooses to participate in such consultation, the consultation shall include, to the extent the patient consents to share such information, consideration of: the patient’s terminal illness; the patient’s prognosis; current and past courses of treatment prescribed for the patient in connection with the patient’s terminal illness, including the results of any such treatment; and any palliative care, comfort care, hospice care, and pain control treatment the patient is currently receiving or has received in the past; and
  8. advise the patient about the importance of having another person present if and when the patient chooses to self-administer medication and of not taking the medication in a public place;

Then, a second physician (the “consulting physician”) must

  1. examine that patient and the patient’s relevant medical records; and
  2. confirmed, in writing, the attending physician’s diagnosis that the patient is terminally ill;
  3. verify that the patient is capable, is acting voluntarily, and has made an informed decision to request medication that, if prescribed, the patient may choose to self-administer pursuant

In some cases, a third consultant, a mental health professional must also weigh in to confirm the terminally ill patient is “capable” of choosing to die. If, in the medical opinion of the attending physician or the consulting physician, \that the patient may choose to self-administer pursuant may not be capable, the physician shall refer the patient to a mental health care professional to determine whether the patient is capable. A consulting physician who refers a patient to a mental health care professional pursuant to this subsection shall provide written notice of the referral to the attending physician.  The attending physician shall not write a prescription for the lethal medication unless the attending physician has been notified in writing by the mental health care professional of that individual’s determination that the patient is capable.

Responses to a Second Oral Request, 15 Days Later

If, after these two or three medical professionals concur the terminally ill patient “qualifies” for the medication, then, if the patient must make a second oral request, at least 15 days later, for a lethal prescription to self-administer.  Then, the attending physician must

  1. Inform the patient of the patient’s opportunity to rescind the request at any time and in any manner, and offer the patient an opportunity to rescind the request at the time and
  2. Advise the patient to notify his/her next of kin (although the patient’s request for the lethal prescription cannot be denied if the patient chooses not to notify the next of kin.

The Written Request and Further Steps Prior to Prescribing a Lethal Dose

Before the attending physician prescribes medication to self-administer; the following things must happen.

  1. Another 48 hours since the second oral request has passed; and
  2. The patient must provide a written request. The written request may be provided earlier in the process but must be given before the prescription is actually written;
    The language of the written request is set out in the statute. The written request must

    1. Include language set out in a sample form by the Act;
    2. Must be, dated by the patient; and
    3. witnessed by at least two individuals who, in the patient’s presence, attest that, to the best of their knowledge and belief, the patient is capable and is acting voluntarily to sign the request.   The witnesses may not include the patient’s attending physician.
    4. At least one of the witness must be neither be a relative or spouse of the patient; a person, at the time the request is signed, entitled to inherit any portion of the patient’s estate either by will or operation of law nor the owner, operator, nor employee of the a health care facility where the person is a patient except for a long term care facility
  3. The attending physician must fully document the findings and referrals required above, as well as the patient’s request for the self-administering medication.

The restriction on those who inherit any portion of the patient’s estate “by operation of law” is probably intended to cover those who may inherit property in the absence of a will.  However, there are many other property interests, such as real estate owned by husband and wife, or certain jointly held bank accounts which often pass “outside the estate” automatically under law to the surviving co-owner.  The more conservative approach would be to assume that the written request should always have at least one signing witness who is not likely to receive any financial benefit upon death of the patient.

The Actual Delivery of the Request Dose to Be Self-Administered

Once all the above steps have been completed, the attending physician “shall”:

  1. 1dispense medication directly, including ancillary medication intended to facilitate the desired effect to minimize the patient’s discomfort, (if the attending physician is authorized under law to has a current federal Drug Enforcement Administration certificate of registration to dispense drugs; or
  2. contact a pharmacist to inform the latter of the prescription, and transmit the written prescription personally to the pharmacist, who shall dispense the medication directly to the patient, the attending physician, or an expressly identified agent of the patient.

Neither the attending physician nor a pharmacist may send the patient this medication by mail or other form of courier.

The attending physician or pharmacist must then notify the Department of Health of the dispensing record within 30 days and the attending physician must notify the Department of Health within 30 days of the patient’s death.

The Impact On Insurance Policies and Estate Planning

The statute voids any provision in any insurance policy or other contract or will which would restrict or penalize or preclude a New Jersey Resident from requesting the self-administered medication, or withdrawing such a request.  No insurance policies or contracts issued after August 1, 2019 may include such language.

However, if the patient decides to self-administer the medication in a “public place,” any costs created to” a governmental entity” may be recovered by that entity from the patient’s estate.

The restriction of the New Jersey “Medical Aid in Dying for the Terminally Ill Act” statute to New Jersey residents can become significant for “snow birds” and others who travel between multiple dwellings.   Historically, many have elected their home outside of New Jersey to be official residence.  Declaring oneself to be a New Jersey resident to take advantage of this statute may undo tax planning, availability of public subsidies, estate planning which had been undertaken under the laws of other states.  Therefore, individuals in this situation should carefully consider the availability of “right to die” rights under their home state laws, and the impact of revising their residence before revising or re-asserting a New Jersey residence under this statute.

Guardianships, Conservatorships and Powers of Attorneys Can Not Be Used.

As noted above, relatives, heirs and others with direct personal and financial connection to the patient cannot be the only witnesses to the written request for the lethal dose.  Furthermore, formal appointments of guardianship, conservatorship, and as health care representatives under living wills do not have authority under those instruments to make or rescind requests or other decisions under this Act.  They may, however, assist in communicating a “capable” patient’s wishes.

Health Care Worker’s Right to Participate In the Process and Right to Refuse to Participate in the Process.

Health care professionals are immunized from claims of elder care abuse or other claims for complying with the statute, and for good faith efforts for compliance. They are also immunized for being present at the patient’s death or self-administration.  However, they are not immunized for negligence, gross negligence, recklessness or misconduct. They are similarly immunized for refusing to participate if they do not want to do so. If a health care professional is unable or unwilling to carry out a patient’s request for a dose to self-administer, and the patient transfers the patient’s care to a new health care professional or health care facility, the prior health care professional shall transfer, upon request, a copy of the patient’s relevant records to the new health care professional or health care facility.

Criminal Laws To Protect the Patient and Right of Decision

The Act continues to forbid assisted suicide (other than in compliance in the statute) and homicide.  It also creates new criminal prohibitions against: forging, altering, or destroying or concealing a recission of a request for the lethal prescription with the intent of causing the patient’s death; coercing or exerting undue influence on a patient to request medication or to destroy a rescission of a request; or theft of the medication prescribed to a qualified terminally ill patient.

For a copy of the statutory form for a written request for the Self-Administration Dose, contact Sheak & Korzun, P.C. This bulletin is for informational purposes only.  For legal advice and/or tax advice, contact an attorney and/or accountant licensed in your state.