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Right-To-Die Legislation Adopted in New Jersey

Posted: 06/05/2019
Services: Personal Wealth Estates and Trusts

Primum non nocere.  "First do no harm" has been promised by medical students since the fifth century B.C.  But times have changed.  Today individuals are living longer and sometimes in circumstances in which they endure prolonged suffering.  For many physicians and patients, right-to-die policies that alleviate suffering are consistent with this ancient Hippocratic oath. 

​Joining Oregon, five other states and the District of Columbia,  New Jersey will soon give its residents legalized access to aid-in-dying.  Specifically, effective on August 1, 2019, an adult individual will have the right to obtain lethal medication which may be self-administered to end his or her life.

To qualify, an individual must meet the following requirements:

  • be an adult resident of New Jersey,
  • have capacity to make an informed health care decision and to communicate the decision to a health care provider,
  • be determined to be terminally ill by two physicians, and
  • voluntarily express in two oral requests and one written request a desire to receive a prescription for medication that will bring about death.

The new law contains a statutory form for a patient’s written request to a physician for a prescription.  The form must be signed by the patient and witnessed by two individuals who, in the patient’s presence, attest that the patient is capable and acting voluntarily, and that the witness is not related by blood, marriage or adoption, and not entitled to a portion of the patient’s estate, nor is an owner, operator or employee of a heath care facility (other than a long-term care facility), nor a patient’s physician.  There are also waiting periods between the requests and writing the prescription.

Certainly there are many subjective issues that arise with this new law.  First, "terminally ill" is defined as having a six month life expectancy, which is defined with reference to the Medicare standard for approval of hospice benefits.  As many readers of this Alert know, a physician’s prediction on how long a patient will live is not exact.

Another concern arises with regard to permitting owners, operators and employees of long-term facilities to act as witnesses of a written request.  Does this open the door to health care facilities targeting difficult patients?

A third issue arises with regard to the technical requirements in the new law.  Among them are a number of duties imposed upon physicians, particularly with regard to determining the patient’s capacity as well as his or her diagnosis and prognosis, and the need for careful documentation and written communications.  The new law also requires a second consulting physician confirm the diagnosis and prognosis, and determine that the patient is capable and acting voluntarily.  Some physicians may not have sufficient familiarity with a patient that is the basis for these determinations, or  may find the necessary time and documentation to be too onerous.

In addition, some patients who are very ill may have difficulty complying with technical requirements, particularly with regard to the written and oral requests that must be submitted to their physician.

Finally, many patients may obtain the prescription and never take it.  Though the statute requires disposal of such medications by lawful means, i.e., in accordance with state and federal guidelines, there is no penalty if the medication is not disposed of by "lawful means."

For many readers, the option of terminating a life isn’t an easy concept to accept.  However, aid-in-dying will soon be a normal part of hospice care in New Jersey.

If you would like further information on the new law, please contact the author of this alert.