The New Jersey Medical Aid in Dying Act
Understanding the New Jersey Medical Aid in Dying Act
By Andrew M. Grenell, Esq.
In 2019, a law was enacted in the State of New Jersey which authorized medical aid in dying for terminally ill New Jersey residents. The Medical Aid in Dying for the Terminally Ill Act, sometimes referred to as the “MAID Act”, provides certain qualifying individuals with the legal option to seek, obtain, and take prescription medication intended to peacefully end their lives instead of suffering through the pain and indignity of the end stages of a terminal illness.
Controversy and Present Legal Status
While the MAID Act first became effective on August 1, 2019, the implementation of the MAID Act was immediately stayed by the Court in conjunction with a lawsuit filed by a physician who claimed that the MAID Act was unconstitutional. The MAID Act has only been effective as a practical matter since August 27, 2019, when the New Jersey Supreme Court upheld a lower appeals court decision which dissolved that stay. In April 2020, the lawsuit challenging the MAID Act was dismissed by the trial court, upholding the MAID Act. While that lawsuit is the subject of an appeal still pending as of this writing, the MAID Act remains in full force and effect unless and until an appeals court finds the MAID Act is unconstitutional or the New Jersey Legislature repeals it.
Minimum Requirements for Eligibility
A patient who wishes to avail themselves of the MAID Act must be:
- An adult who is 18 years of age or older;
- Capable of making their own healthcare decisions and communicating those decisions to a healthcare professional;
- A New Jersey resident; and
- In the terminal stage of an irreversible illness with six months or less left to live.
Additionally, although not expressly stated in the MAID Act, a patient must also be physically capable of self-administering any medication prescribed to end their life. The Act expressly states that no portion of the Act “[s]hall be construed to . . . authorize a physician or any other person to end a patient’s life by lethal injection, active euthanasia, or mercy killing, or any act that constitutes assisted suicide under any law of this State…” Therefore, it can be reasonably inferred that patients are required to be physically capable of self-administering medication prescribed under the MAID Act to be eligible to avail themselves of the MAID Act.
The Oral and Written Requests
To avail themselves of the MAID Act, a patient must make three requests to the physician who is primarily responsible for the treatment of the patient’s terminal illness (the “Attending Physician”). The three requests must consist of two oral requests (separated by at least 15 days) and one written request submitted to their Attending Physician. While the Act does not require that the oral requests must take any particular form, it is wise to make it clear that the oral request is made pursuant to the MAID Act because Attending Physicians are required to record oral requests made pursuant to the MAID Act in the patient’s medical record.
The written request must take the specific form described in the MAID Act and must be made simultaneously with or after the first oral request. The patient must sign and date the written request and do so in the presence of two witnesses. The witnesses cannot be the patient’s physician, someone entitled to inherit any portion of the patient’s estate, or someone associated with any health care facility where the patient receives medical treatment or resides. Additionally, at least one witness must be unrelated to the patient.
Physician Responsibilities and Immunity
The MAID Act contemplates a minimum of two physicians be involved in a patient’s decision to avail themselves of the MAID Act: an Attending Physician and a second physician who is qualified to confirm the Attending Physician’s diagnosis and prognosis (the “Consulting Physician”). While no physician is required to carry out a patient’s request pursuant to the MAID Act, if they refuse, the physician is required to transfer the patient’s medical records to a new health care provider upon request.
When a patient makes an initial oral request for medication under the MAID Act, if the Attending Physician is willing to ultimately prescribe the requested medication, then the Attending Physician is required to do the following before prescribing the requested medication:
- Determine if the patient has an irreversible terminal illness with six months or less left to live;
- Determine if the patient is capable of making their own healthcare decisions and has made a voluntary request for a prescription under the MAID Act;
- Require the patient demonstrate they are a New Jersey resident;
- Inform the patient of their diagnosis and prognosis, the potential risks associated with taking the requested medication, and the alternatives to taking the requested medication (i.e., treatment options, palliative care, comfort care, hospice care, and pain control);
- Refer the patient to a Consulting Physician to confirm the Attending Physician’s findings;
- Refer the patient to a mental health care professional if there is doubt as to whether the patient is capable of making their own healthcare decisions;
- Recommend to the patient that they participate in a consultation about alternatives to the requested medication;
- Explain to the patient that it is important to have another person present when taking the requested medication and not to take said medication in a public place;
- Explain to the patient that the patient can rescind the request for medication at any time and in any manner and expressly provide such an opportunity at the time the patient makes the second oral request; and
- Document the fulfillment of each of the above requirements in the patient’s medical record together with the Consulting Physician’s written confirmation; and
- Recommend to the patient that they notify their next of kin that they are requesting medication under the MAID Act.
The Consulting Physician is obligated to do the following:
- Examine the patient and the patient’s “relevant medical records”;
- Confirm the Attending Physician’s diagnosis and prognosis in writing;
- Verify that the patient is capable of making their own healthcare decisions; and
- Verify the patient is requesting medication pursuant to the Act voluntarily.
Additionally, the Consulting Physician is obligated to confirm the patient’s request for said prescription was an informed decision, meaning that the decision was based upon the patient having been made aware of:
- Their diagnosis;
- Their prognosis;
- The risks associated with taking medication prescribed under the Act;
- The result of taking medication prescribed under the Act; and
- Alternatives to taking the medication.
The MAID Act provides no guidance about what an Attending Physician can or should prescribe to a patient. It can therefore be implied that the decision about the appropriate prescription or combination of prescriptions for any particular patient is left to the Attending Physician’s best medical judgment.
As long as physicians substantially comply with the MAID Act’s requirements, physicians are generally statutorily immune from civil liability, criminal liability, and professional discipline. In other words, they generally cannot be punished or suffer consequences for merely participating with the MAID Act as long as they substantially comply with the MAID Act’s requirements. However, physicians can still be liable for acts or omissions that constitute negligence, recklessness, or intentional misconduct, just as they would for any other medical services physicians provide.
FSKS is on Your Side
The decisions associated with utilizing the MAID Act are difficult and fraught with legal and emotional complexities for patients and their families, friends, and physicians. Our experienced and compassionate attorneys are here to help and advise those seeking to navigate difficult end-of-life choices with dignity and peace of mind. For more information or assistance dealing with these very difficult issues, please contact James E. Shepard, Esq. (jshepard@fskslaw.com) or Andrew M. Grenell, Esq. (agrenell@fskslaw.com) at (973) 538-4700.
