Medical aid in dying now legal in New York
For years, Shelter Islanders with terminal illnesses had no choice but to live out their remaining time, with no hope of recovery and often in severe pain. While 13 states and territories have statutes permitting aid in dying, New York lacked such a measure. That all changed last month.
As of Aug. 5, terminally ill New Yorkers may request medical aid in dying through self-administered medication under New York’s Medical Aid in Dying Act (MAID) — provided they meet the law’s eligibility requirements. Qualified patients may use MAID to hasten death and avoid potentially painful final days. For many, the law offers relief and the dignity of choosing not to endure prolonged suffering before an underlying illness causes death.
The law comes with numerous requirements for patients and medical providers, which collectively act as safeguards against abuse.
WHO QUALIFIES?
To qualify under MAID, a patient must be a New York resident at least 18 years old, be under the care of a New York physician, have decision-making capacity and have a medically confirmed terminal illness or condition. A terminal illness or condition under MAID is one that is incurable and irreversible and that, in reasonable medical judgment, will result in death within six months, with or without treatment.
The patient’s attending physician and a consulting physician — neither of whom may be a physician assistant or nurse practitioner — must independently confirm the terminal diagnosis, prognosis, decision-making capacity and voluntariness of the request. In addition, a licensed psychologist, psychiatrist or neurologist must determine that the patient has decision-making capacity.
The patient must voluntarily make an affirmative, conscious decision to take the medication. The law specifically excludes lethal injection and infusion as methods of medically hastening death.
Requesting MAID is a personal right; a health care agent cannot request it on the patient’s behalf.
Under the law, MAID is not considered suicide. The patient’s death certificate must identify the underlying illness or condition as the cause of death and may not list suicide or MAID as the cause. In addition, medically assisted death under MAID is not considered assisted suicide, mercy killing or homicide.
HOW TO REQUEST MAID
A qualified patient may request a prescription for medication to self-administer at home or in a health care facility. The medication may not be administered by a health care professional or any other person. It must be self-administered, and the prescription generally may not be filled until five days after it is written.
The patient must ask the attending physician for a prescription under MAID.The request must be made orally, recorded and submitted in writing.If the patient cannot speak, the law permits alternative methods of communication. The written request may be made on the Department of Health’s DOH-5847 Request for Medication to End My Life form, or on a substantially similar form.
The request must be signed and dated by the patient, and two adult witnesses must certify, in the patient’s presence, that the request was made voluntarily, without coercion, and that the patient appears to have decisionmaking capacity. Witnesses may not be relatives, domestic partners, health care agents, holders of powers of attorney, owners or personnel of the facility where the patient resides or is receiving treatment, or anyone who would inherit or otherwise benefit financially from the patient’s death. The attending physician, consulting physician and required mental health professional also may not serve as witnesses, although an interpreter may do so if needed.
HEALTH CARE PROVIDERS CAN REFUSE
Health care providers are not required to participate in MAID. However, those that decline to participate must assist with the patient’s transfer to another health care provider and comply with requests for medical records. Hospitals, nursing homes, residential health care facilities and home hospice providers may decline to participate and may prohibit MAID-related activities in their facilities if they have formally adopted a policy based on sincerely held religious beliefs or moral convictions central to their operating principles.
The enactment of MAID in New York gives qualifying terminally ill patients an additional end-of-life option. Ultimately, the decision whether to pursue MAID rests with the patient, who must determine the best course of action based on personal circumstances, medical guidance and individual values.
Patricia Marcin is a partner at Rivkin Radler LLC, where her practice concentrates in trusts estates and tax law.
