New Jersey’s New Death with Dignity Act Explained

New Jersey’s passage of the “Aid in Dying for the Terminally Ill Act” makes it the eighth state in the nation to allow terminally ill patients to request medication to end their lives. The bill was signed into law by Governor Murphy on April 12, 2019, and became effective on August 1, 2019.

In brief, the new law allows New Jersey residents who are terminally ill to obtain medication from their physician that will likely result in death a few hours after it is ingested. Specifically, the law requires:

• The person must be a “qualified terminally ill patient,” which is defined as a capable adult who 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. This status must be determined by the person’s attending physician and confirmed by a consulting physician.
• The patient must make two oral requests and one written request for the medication. At least 15 days must elapse between the two oral requests. The written request may be made at the same time as the first oral request or any time thereafter. It must be signed and dated by the patient and witnessed by at least two unrelated individuals. At the time of the second oral request, the physician must offer the patient the opportunity to rescind the request.
• The physician must inform the patient of the potential risks of ingesting the medication, the probable result of taking the medication, and alternatives to taking the medication, including additional treatment options, palliative care, hospice care, and pain control.
• The medication must be self-administered by the patient.
• Physicians’ participation is entirely voluntary. However, those who choose to participate and comply with the requirements of the law are immune from civil and criminal liability.

It is important to note that the patient must be a capable adult. This means that a guardian, attorney-in-fact, health care representative, or other type of agent cannot act on behalf of the patient to request life-terminating medication. Only the patient can do so. The patient’s instructions in an advance directive or living will for another person to seek such care on the patient’s behalf will not be effective.

In addition, the medication prescribed must be administered by the patient himself or herself. This distinguishes the law from “assisted suicide,” “mercy-killing” or “euthanasia,” all of which imply that another person has helped cause the patient’s death.

The law also provides that the patient’s life insurance policy, annuity contract, and the like cannot be affected by the patient’s decision to avail himself or herself of this law. For example, if a life insurance policy contains a provision that the company will not pay any benefits upon the insured’s suicide, the patient’s death under this law will not be considered a suicide and the benefits under the policy must be paid. It is also anticipated that the patient’s death certificate will list the underlying illness as the cause of death, rather than the medication that was prescribed, to protect the patient’s privacy. Doctors, however, are required to report to the state the number of prescriptions they write to patients and how many of their patients’ deaths are a direct cause of ingesting the medication.

Studies from Oregon, where a similar law has been on the books for over 20 years, show that about two-thirds of the patients who are prescribed life-terminating medication will in fact ingest the medication. It appears that many terminally ill Oregonians are comforted by the fact that they can end their lives at the time and manner of their choosing, even if some choose not to.  In fact, the three most common end-of-life concerns that lead these patients to the decision to end their own lives include: (1) loss of autonomy; (2) no longer being able to participate in activities that make life enjoyable; and (3) loss of dignity.

The New Jersey law also encourages doctors to counsel their patients on discussing their decision to terminate their lives with family members, although doing so is not mandatory.

Terminally ill New Jerseyans who are interested in obtaining life-terminating medication under the new law should consult with their physicians and discuss their decision with family members and any other trusted advisors. In addition, such individuals should review their estate planning documents (such as wills, trusts, and beneficiary designations) and make any desired changes before proceeding with their decision.