An Article By: Scott P. Borsack, Esq.
On August 1, 2019, New Jersey became the eighth state in the country to pass legislation that allows terminally ill patients to end their own lives. In his signing statement, Governor Phil Murphy acknowledged that the law was the product of more 10 years of debate and consideration and challenged his own religious beliefs.
In order to seek the benefits of the statute an adult must be a “qualified terminally ill patient” who closely follows the requirements of the law. An adult is qualified if they are (1) capable, (2) a resident in the State of New Jersey, and (3) satisfy the requirements to obtain a prescription for medication which will end their life. Only an adult, 18 years or older can be qualified under the law. In order to be found capable, an adult must be able to make health care decisions and share those decisions with a health care provider. Those who cannot communicate verbally but are able to make their choices known through other channels must do so through “person’s familiar with the patient’s manner of communicating”. The patient has to be in the terminal stage of their illness, disease or condition with a life expectancy of six months or less. The diagnosis and prognosis must be established by an attending physician and confirmed by another consulting physician. The attending physician is responsible for verifying New Jersey residency.
The decision of the patient must be “informed” which requires that the attending physician convey to the patient not only the diagnosis and prognosis, but also of the risks of taking the medication to be prescribed, the probable results of taking the medication and alternatives to the medication including palliative and hospice care. If there is any question about whether the patient is truly capable of understanding the consequences of the request, it is the responsibility of the attending physician to refer the patient to a mental health care professional.
The patient must make several requests for a prescription for the lethal medication, at least one of which must be made in writing on a specific form required by law and must be witnessed by someone other than a relative, the physician, employee of the health care facility and is someone not entitled to receive any portion of the patient’s estate upon his or her death. The attending physician must recommend that the patient inform their next of kin of their decision to administer lethal medication and there is a 48 waiting period after the written request to release the medication.
The drafters of the legislation took great care to make sure that a patient contemplating an end of life decision has the benefit of medical advice, an evaluation of competence, involvement of family members and a cooling off period to deal with potentially hasty decisions. There is a lot of responsibility placed on an attending physician in directing the process. A physician who acts in accordance with the statute cannot be prosecuted for a criminal act.