"Medical Aid in Dying for the Terminally Ill Act" signed, permits qualified terminally ill patient to self-administer medication to end life in humane and dignified manner
Governor Murphy on 4/12/2019 signed legislation that will allow terminally ill New Jersey adults to end their lives peacefully, with dignity, and at their own discretion. The law, which was sponsored by Assemblyman John Burzichelli and Senator Nick Scutari, makes New Jersey the eighth state to allow such end-of-life decisions with the assistance of medical professionals.
“Allowing residents with terminal illnesses to make end-of-life choices for themselves is the right thing to do,” said Governor Murphy. “By signing this law today, we are providing terminally ill patients and their families with the humanity, dignity, and respect that they so richly deserve at the most difficult times any of us will face. I commend Assemblyman Burzichelli for steering us down this long, difficult road, and thank the Legislature for its courage in tackling this challenging issue.”
The law will take effect on August 1, 2019.
“Over the course of seven years, we’ve heard countless heartbreaking stories of terminally ill patients and their families yearning to make a personal choice that simply was not provided for under law,” said Assemblyman John Burzichelli. “The choice for patients, who are critically ill and with a short life expectancy prescribed by their doctors, to determine their final day on this earth with dignity deserved honest and intellectual discussion. I’ve had many, many conversations with religious and non-profit organizations such as Compassion and Choices of New Jersey to get their take on the legislation. I thank all who have contributed over the years to the open dialogue, for and against it, and to the Governor for giving it the attention it deserved. It’s been a long, learned discussion, one that I’m sure will continue as we move forward today.”
“This will provide a humane choice for terminally-ill patients who are experiencing tremendous suffering and pain. It offers the freedom of choice for those with no hope of surviving beyond six months to end their suffering in a dignified way,” said Senate President Steve Sweeney. “It is a very personal decision. I watched someone I loved suffer for the last six months of her life from cancer while her children watched. Her suffering was prolonged to a point where she entered a hospice where her medications were increased until she passed away. I don’t think that was humane for her or for her loved ones. This will offer patients in end-of-life circumstances an option to decide their own fate in their final days.”
“There is no good reason for terminally ill patients to be forced to endure prolonged pain and suffering if they make the choice to end their lives with dignity,” said Senator Nicholas P. Scutari. “This law respects the free will of terminally ill patients and provides a humane and dignified process for those qualified to end their lives. I am very proud of New Jersey to support this law and the compassion it provides to those suffering.”
“There are many strong opinions on this issue, but the truth is, only these patients understand what it is like to know death is approaching,” said Assemblyman Joe Danielsen. “This law will give terminally ill patients the choice to meet their end on their own terms. This is the humane approach. We cannot prevent them from dying, but we can at least provide the option and let them to do it with dignity.”
The “Medical Aid in Dying for the Terminally Ill Act” permits terminally ill, adult patients residing in New Jersey to obtain and self-administer medication to end their lives peacefully and humanely. A patient’s attending and consulting physicians must determine that the patient has a life expectancy of six months or less, has the capacity to make health care decisions, and is acting voluntarily, in order for the patient to obtain the medication. The law establishes additional procedures and safeguards that patients, physicians, and other health care professionals must follow before a qualifying patient may legally obtain and self-administer the medication.
The Assembly Judiciary Committee reports favorably and with committee amendments Assembly Law No. 1504.
As amended by the committee, this law establishes the “Aid in Dying for the Terminally Ill Act,” which will allow 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 terminate the patient’s life. Under the law, “terminally ill” is defined to mean 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.
In order for a terminally ill patient to receive a prescription for medication under the law, the patient is required to make two oral requests and one written request to the patient’s attending physician for the medication. The law requires at least 15 days to elapse between the initial oral request and the second oral request, and between the patient’s initial oral request and the writing of a prescription for the medication. The patient may submit the written request for medication either when the patient makes the initial oral request, or at any time thereafter, but a minimum of 48 hours are to elapse between the attending physician’s receipt of the written request and the writing of a prescription for medication.
When a patient makes an initial oral request for medication under the law’s provisions, the attending physician is required to provide the patient with information about the risks, probable results, and alternatives to taking the medication; recommend that the patient participate in a consultation concerning concurrent or additional treatment opportunities, palliative care, comfort care, hospice care, and pain control options; and refer the patient to a health care professional who is qualified to discuss those alternative care and treatment options. The patient may choose, but is not required, to participate in such consultation. The attending physician is also required to recommend that the patient notify the patient’s next of kin of the request, but medication may not be denied if a patient declines, or is unable to, provide this notification.
The attending physician is required to refer the patient to a consulting physician for the purpose of obtaining confirmation of the attending physician’s diagnosis. Both the attending physician and the consulting physician are required to verify that the patient has made an informed decision when requesting medication under the law. When the patient makes the second oral request, the attending physician is to offer the patient an opportunity to rescind the request. In addition, the attending physician is required to notify the patient that a request may be rescinded at any time and in any manner, regardless of the patient’s mental state.
A patient may make a written request for medication, in accordance with the law’s provisions, so long as the patient: is an adult resident of New Jersey, as demonstrated through documentation submitted to the attending physician; is capable; is terminally ill, as determined by the attending physician and confirmed by the consulting physician; and has voluntarily expressed a wish to receive a prescription for the medication.
The law requires a valid written request for medication to be in a form that is substantially similar to the form set forth in the law. The law requires the written request to be signed and dated by the patient and witnessed by at least two individuals who attest, in the patient’s presence, that, to the best of their knowledge and belief, the patient is capable and is acting voluntarily.
The law requires at least one of the witnesses to be a person who is not:
(1) a relative of the qualified patient by blood, marriage, or adoption;
(2) at the time the request is signed, entitled to any portion of the patient’s estate upon the patient’s death;
(3) an owner, operator, or employee of a health care facility, other than a long term care facility, where the patient is receiving medical treatment or is a resident.
The patient's attending physician may not serve as a witness.
A written request form will be required to include an indication as to whether the patient has informed the patient’s next-of-kin about the request for medication and an indication as to whether concurrent or additional treatment consultations have been recommended by the attending physician or undertaken by the patient.
If the patient complies with the law’s oral and written request requirements, establishes State residency, and is found by both the attending physician and a consulting physician to be capable, to have a terminal illness, and to be acting voluntarily, the patient will be considered to be a “qualified terminally ill patient” who is eligible to receive a prescription for medication. The law expressly provides that a person is not be considered to be a “qualified terminally ill patient” solely on the basis of the person’s age or disability or the diagnosis of a specific illness, disease, or condition.
If either the attending physician or the consulting physician believes that the patient may lack capacity to make health care decisions, the physician will be required to refer the patient to a mental health care professional, which is defined in the amended law to mean a licensed psychiatrist, psychologist, or clinical social worker, for a consultation to determine whether the patient is capable. If such a referral is made, the attending physician is prohibited from issuing a prescription to the patient for medication under the law unless the attending physician has received written notice, from the mental health care professional, affirming that the patient is capable.
Prior to issuing a prescription for requested medication, the attending physician is required to ensure that all appropriate steps have been carried out, and requisite documentation submitted, in accordance with the law’s provisions. The patient's medical record is to include documentation of: the patient’s oral and written requests and the attending physician’s offer to rescind the request; the attending physician’s recommendation for concurrent or alternative care and treatment consultations, and whether the patient participated in a consultation; the attending physician’s and consulting physician’s medical diagnosis and prognosis, and their determinations that the patient is terminally ill, is capable of making the request, is acting voluntarily, and is making an informed decision; the results of any counseling sessions with a mental health care professional ordered for the patient; and a statement that all the requirements under the law have been satisfied.
A patient's request for, or the provision of, medication in compliance with the law will not constitute abuse or neglect of an elderly person, and may not be used as the sole basis for the appointment of a guardian or conservator. The law specifies that a patient’s guardian, conservator, or representative is not authorized to take any action on behalf of the patient in association with the making or rescinding of requests for medication under the law’s provisions, except to communicate the patient’s own health care decisions to a health care provider upon the patient’s request. The law prohibits any contract, will, insurance policy, annuity, or other agreement from including a provision that conditions or restricts a person’s ability to make or rescind a request for medication pursuant to the law, and further specifies that the procurement or issuance of, or premiums or rates charged for, life, health, or accident insurance policies or annuities may not be conditioned upon the making or rescinding of a request for medication under the law’s provisions. An obligation owing under a contract, will, insurance policy, annuity, or other agreement executed before the law’s effective date will not be affected by a patient’s request, or rescission of a request, for medication under the law.
Any person who, without the patient’s authorization, willfully alters or forges a request for medication pursuant to the law, or conceals or destroys a rescission of that request, with the intent or effect of causing the patient's death, will be guilty of a crime of the second degree, which is punishable by imprisonment for a term of five to 10 years, a fine of up to $150,000, or both. A person who coerces or exerts undue influence on a patient to request medication under the law, or to destroy a rescission of a request, will be guilty of a crime of the third degree, which is punishable by imprisonment for a term of three to five years, a fine of up to $15,000, or both. The law does not impose any limit on liability for civil damages in association with the negligence or intentional misconduct of any person.
The amended law provides immunity from civil and criminal liability, from professional disciplinary action, and from censure, discipline, suspension, or loss of any licensure, certification, privileges, or membership for any action that is undertaken in compliance with the law, including the act of being present when a qualified terminally ill patient takes the medication prescribed to the patient under the law’s provisions. As amended, the law provides that this immunity also applies to any refusal to take actions in furtherance of, or to otherwise participate in, a request for medication made under the law. Any action undertaken in accordance with the law will not be deemed to constitute patient abuse or neglect, suicide, assisted suicide, mercy killing, euthanasia, or homicide under any State law, and the law expressly exempts actions taken pursuant to the law from the provisions of N.J.S.2C:11-6, which makes it a crime to purposely aid a person in committing suicide. These immunities will not apply to acts or omissions constituting gross negligence, recklessness, or willful misconduct. Nothing in the law is to be construed to authorize a physician or other person to end a patient's life by lethal injection, active euthanasia, or mercy killing.
The law amends section 1 of P.L.1991, c.270 (C.2A:62A-16), which establishes a “duty to warn” when a health care professional believes that a patient intends to carry out physical violence against the patient’s own self or against another person, in order to specify that that “duty to warn” provisions are not applicable when a qualified terminally ill patient requests medication under the law.
The law requires a patient’s attending physician to notify the patient of the importance of taking the prescribed medication in the presence of another person and in a non-public place. The law specifies that, if any governmental entity incurs costs as a result of a patient’s self-administration of medication in a public place, the governmental entity will have a claim against the patient’s estate to recover those costs, along with reasonable attorney fees.
The law authorizes attending physicians, if registered with the federal Drug Enforcement Administration, to dispense requested medication, including ancillary medication designed to minimize discomfort, directly to the patient. Otherwise, the attending physician may transmit the prescription to a pharmacist, who will dispense the medication directly to the patient, to the attending physician, or to an expressly identified agent of the patient. Medication prescribed under the law may not be dispensed by mail or other form of courier. Not later than 30 days after the dispensation of medication under the law, the health care professional who dispensed the medication will be required to file a copy of the dispensing record with the Division of Consumer Affairs (Division) in the Department of Law and Public Safety.
Any medication prescribed under the law, which the patient chooses not to self-administer, is required to be disposed of by lawful means. Lawful means includes, but is not limited to, disposing of the medication consistent with State and federal guidelines concerning disposal of prescription medications or surrendering the medication to a prescription medication drop-off receptacle. No later than 30 days after the patient’s death, the attending physician will be required to transmit documentation of the patient’s death to the Division. The Division is required, to the extent practicable, to coordinate the reporting of dispensing records and records of patient death with the process used for the reporting of prescription monitoring information. The Division will be required to annually prepare and make available on its Internet website a statistical report of information collected pursuant to the law’s provisions; information made available to the public will not include personal or identifying information.
A health care facility’s existing policies and procedures will be required, to the maximum extent possible, to govern actions taken by health care providers pursuant to the law. Any action taken by a health care professional or facility to carry out the provisions of the law is to be voluntary. If a health care professional is unable or unwilling to participate in a request for medication under the law, the professional will be required to refer the patient to another health care provider and provide the patient’s medical records to that provider.
This law was pre-filed for introduction in the 2018-2019 session pending technical review. As reported, the law includes the changes required by technical review, which has been performed.
COMMITTEE AMENDMENTS:
The committee amendments clarify that patients are to be advised of both concurrent and additional treatment opportunities, as well as palliative care, comfort care, hospice care, and pain control, when making a request for aid in dying medication under the law.
The committee amendments provide that licensed clinical social workers will be permitted to make a determination as to whether a patient has the capacity to make health care decisions; as introduced, the law provided that only licensed psychiatrists and psychologists could make this determination. The committee amendments additionally add a new definition of “mental health care professional,” which includes licensed psychiatrists, psychologists, and clinical social workers, and add a provision requiring the State Board of Social Work Examiners to adopt rules and regulations to implement the provisions of the law. The committee amendments remove references concerning the referral of a patient to a mental health care professional if the attending or consulting physician thinks the patient may have a psychiatric or psychological disorder or depression that causes impaired judgment; as amended, the law provides for such referrals when the attending or consulting physician thinks the patient may lack the capacity to make health care decisions. The law removes a definition of “counseling,” and various references to the term, that are obviated by these amendments.
The committee amendments revise the definition of “self-administer” to clarify that the term will not be limited to ingesting the aid in dying medication, but will instead apply to the physical administration of the medication to the patient’s own self.
The committee amendments remove a provision that would have required that, if the patient is a resident in a long term care facility, a designated staff member of the facility is required to be one of the witnesses to the patient’s written request. The committee amendments further provide an exception to the prohibition against an owner, operator, or employee of a health care facility from being a witness to the patient’s written request, to provide that this prohibition will not apply when the patient is a resident of a long term care facility. The law defines “long term care facility” to mean a licensed nursing home, assisted living residence, comprehensive personal care home, residential health care facility, or dementia care home.
The committee amendments remove certain language concerning when a patient has provided written consent for the patient’s attending physician to contact a pharmacist regarding a prescription for aid in dying medication; the law expressly provides elsewhere that the patient may provide such written consent when completing the written consent form, making the additional reference to the consent redundant.
The committee amendments clarify that the means of lawfully disposing of unused aid in dying medication may include disposal consistent with State and federal guidelines concerning the disposal of prescription medications or surrender to a prescription medication drop-off receptacle.
The committee amendments provide that, in addition to immunity from civil and criminal liability and professional disciplinary action, a person may not be subject to censure, discipline, suspension, or loss of any licensure, certification, privileges, or membership for any action taken in compliance with the law. The committee amendments further provide that these protections also apply to the refusal to take any action in furtherance of, or to otherwise participate in, a request for medication under the law.
The committee amendments clarify that, in addition to not constituting patient abuse or neglect, suicide, assisted suicide, mercy killing, or homicide, actions taken in connection with a request for medication under the law will not constitute euthanasia.
The committee amendments provide that, in addition to not providing the sole basis for the appointment of a guardian or conservator, a patient’s request for, or the provision of, medication under the law will not constitute abuse or neglect of an elderly person.
The committee amendments provide that the immunities and protections established under the law do not apply to acts or omissions that constitute gross negligence, recklessness, or willful misconduct.
REQUEST FOR MEDICATION TO END MY LIFE IN A
HUMANE AND DIGNIFIED MANNER
I, . . . . . . . . . . . . . . . , am an adult of sound mind and a resident of New Jersey.
I am suffering from . . . . . . . . . . . . . . . , which my attending physician has determined is a terminal illness, disease, or condition and which has been medically confirmed by a consulting physician.
I have been fully informed of my diagnosis, prognosis, the nature of medication to be prescribed and potential associated risks, the expected result, and the feasible alternatives, including 1concurrent or additional treatment opportunities,1 palliative care, comfort care, hospice care, and pain control.
I request that my attending physician prescribe medication that I may self-administer to end my life in a humane and dignified manner and to contact any pharmacist as necessary to fill the prescription.
INITIAL ONE:
. . . . I have informed my family of my decision and taken their opinions into consideration.
. . . . . I have decided not to inform my family of my decision.
. . . . . I have no family to inform of my decision.
INITIAL ALL THAT APPLY:
. . . . .My attending physician has recommended that I participate in a consultation concerning 1concurrent or1 additional treatment opportunities, palliative care, comfort care, hospice care, and pain control options, and provided me with a referral to a health care professional qualified to discuss these options with me.
. . . . .I have participated in a consultation concerning 1concurrent or1 additional treatment opportunities, palliative care, comfort care, hospice care, and pain control options.
. . . I am currently receiving palliative care, comfort care, or hospice care.
I understand that I have the right to rescind this request at any time.
I understand the full import of this request, and I expect to die if and when I take the medication to be prescribed. I further understand that, although most deaths occur within three hours, my death may take longer and my physician has counseled me about this possibility.
I make this request voluntarily and without reservation, and I accept full responsibility for my decision.
Signed:. . . . . . . . . . . . . . .
Dated:. . . . . . . . . . . . . . .
DECLARATION OF WITNESSES
By initialing and signing below on or after the date the person named above signs, we declare that the person making and signing the above request:
Witness 1 Witness 2
Initials Initials
. . . . . . . . . . . . . . . . . .
1. Is personally known to us or has provided proof of identity.
. . . . . . . . . . . . . . . . . .
2. Signed this request in our presence on the date of the person's signature.
. . . . . . . . . . . . . . . . . .
3. Appears to be of sound mind and not under duress, fraud, or undue influence.
. . . . . . . . . . . . . . . . . .
4. Is not a patient for whom either of us is the attending physician.
. . . . . . . . . . . . . . . . . .
Printed Name of Witness 1: . . . . . . . . . . . . .
Signature of Witness 1/Date: . . . . . . . . . . . .
Printed Name of Witness 2: . . . . . . . . . . . . .
Signature of Witness 2/Date: . . . . . . . . . . . .
