New Jersey Legalizes Prescriptions for Self-Administered Medication to End Life for Qualified Terminally Ill Patients

On April 12, 2019, New Jersey enacted the “Aid in Dying for the Terminally Ill Act.”  (P.L. 2019, Ch. 59).  The bill authorizes an adult resident of New Jersey, who has capacity and whose attending physician has determined to be “terminally ill,” to obtain self-administered medication to terminate his or her own life.  The new law will go into effect on August 1, 2019.  It makes New Jersey the eighth state, plus the District of Columbia, to allow for the prescription of medication to end one’s own life.

The capacity required to make such requests is the capacity to make health care decisions and communicate them to a health care provider.  The law requires such patients that are determined to be “terminally ill” to make two oral and one written request to his or her attending physician for medication that can be self-administered to end his or her own life.  The oral requests must be at least 15 days apart, while the written request may be made at any time after the initial oral request.  The written request must be signed by the patient and at least two witnesses, one of whom is not either (a) related to the patient by blood or marriage, (b) entitled to any portion of the patient’s estate, or (c) an owner, operator or employee at the health care facility where the patient is being treated.  Forty-eight hours must elapse after such written request before the attending physician can write the prescription.

Upon receipt of the oral and written requests, the attending physician is required to consult with a second physician who has both examined the patient and reviewed the patient’s medical records. The attending physician must also (a) allow the patient the opportunity to rescind the request, (b) inform the patient of the risks and alternatives to the medication, (c) refer the patient for counseling, if appropriate, and (d) recommend that the patient notify his or her next of kin of the request.  Any rescission by the patient can be made regardless of his or her mental state.

If the attending or consulting physician believes that the patient may not be capable, the physician must refer the patient to a mental health care professional (i.e. psychiatrist, psychologist or licensed clinical social worker) to determine whether the patient is capable.  If such a referral is made, no medication can be prescribed to the patient until the attending physician has been notified in writing from the mental health care professional that the patient is capable.

It is important to note that the patient’s guardian, conservator or health care representative is not authorized to make or rescind the request for such self-administered medication, other than to communicate the patient’s decisions if requested by the patient.  In addition, the law specifically states that such a request by a patient is not grounds, in and of itself, to bring a proceeding for the appointment of a guardian of such patient.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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