The New Jersey Medical Aid in Dying for the Terminally Ill Act (“Right to Die”) (NJ ST 26:16) allows a terminally ill patient to administer medication that will end his or her life in a humane and dignified manner. The process for getting the medication will take at least 15 days, but may take longer depending on the availability of the medication, the time it takes to get the diagnosis, and other factors.
Who Can Take Advantage of the Right to Die Act?
- An adult resident of New Jersey
- Must be proven to the attending physician before receiving the medication
- Must be considered terminally ill
- “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” (NJ ST 26:16-3)
- Need two physicians to verify
- Has voluntarily expressed a wish to receive a prescription for this medication
- The terminally ill person is the ONLY ONE who can make this request, no one else can make it on their behalf
- Need two physicians to verify mental capacity
Checklist for Obtaining the Prescription
- The candidate must make two verbal requests and a written request to his/her attending physician
- The written request can be made as soon after the person makes their initial verbal request or any time after the initial request
- The second verbal request must be made at least 15 days after the initial oral request
- These verbal requests should be documented
- The person must prove they are a New Jersey resident by showing their attending physician one of the following:
- A driver’s license or non-driver identification card issued by the New Jersey Motor Vehicle Commission;
- Proof that the person is registered to vote in New Jersey;
- A New Jersey resident gross income tax return filed for the most recent tax year; or
- Any other government record that the attending physician reasonably believes to demonstrate the individual’s current residency in this state.
- Have two physicians determine that the person is terminally ill
- The attending physician makes the initial diagnosis of terminal illness and the initial determination that the person is capable of making this decision
- A consulting physician must examine the applicant and their medical records and confirm, in writing, the person’s attending physician’s diagnosis that they are terminally ill, and verify that they are capable of making this decision
- Both physicians must determine that the person has the capacity to make this decision
- The person may be referred to a mental health professional if either the consulting physician or the attending physician doesn’t think a person is capable of making this decision
- Unless the mental health professional informs the attending physician in writing that the person is capable of making this decision, the person cannot receive the medication
- The attending physician must wait at least 48 hours after receiving the written request before writing the prescription
- The attending physician can either
- Directly dispense the medication if they’re qualified to do so, or
- Contact a pharmacist to inform them of the prescription and send the pharmacist the prescription
- The pharmacist then gives the medication directly to the patient, the attending physician, or an agent expressly identified by the patient
- The medication cannot be mailed to the patient
- This prescription can be kept on file at the pharmacy if and until the person chooses to fill it.
- If the individual fills out the prescription and chooses not to take the medication, the medication must be disposed of according to state and federal guidelines or surrendered to a prescription medication drop-off receptacle.
- The person can withdraw their request at any time
- The written request to end life must be signed and dated by at least two individuals who attest, in the patient’s presence, that, to the best of their knowledge and belief, the patient is acting voluntarily.
- At least one of the witnesses must be someone who is NOT
- A relative of the qualified patient by blood, marriage, or adoption;
- At the time the request is signed, entitled to any portion of the patient’s estate upon the patient’s death;
- 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 attending physician cannot serve as a witness
- At least one of the witnesses must be someone who is NOT
Requirements of Attending Physician
- Must determine if the patient is, in fact, terminally ill according to the statute’s definition
- Must determine if the patient is a New Jersey resident
- Inform the patient of their prognosis, any risks of taking the medication, the probable result of taking the medication, and any feasible alternatives to taking the medication
- Refer the patient to a consulting physician to confirm their diagnosis and capacity
- Upon receiving the initial oral request, must recommend that the patient participate in a consultation concerning additional or concurrent treatment opportunities for their terminal illness, and provide them with referrals
- Upon receiving the second oral request, must offer the patient the opportunity to rescind the request
- Must inform the patient that they should notify their next of kin of this decision
- Cannot deny the patient the medication if they are unable to or unwilling to notify next of kin
As you have read, the law is complicated and administratively detailed; ethical, moral and religious influences complicate the decision making of not just the dying person but those persons who love him or her and are “dying with person” day in and day out. I have counseled individuals who are contemplating or who have accelerated their deaths. I’m here for you if this post is speaking to you.
To discuss your NJ elder care matter, please contact Fredrick P. Niemann, Esq. at (732) 863-9900 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Elder Care Attorney