Spotlight on Elderlaw: Medical Aid in Dying Legislation
By: Nancy J. Brady, RN, Esq., Partner, Brady & Bader, LLP Attorneys at Law Right to die legislation, also known as "physician assisted death" or "medical aid in dying" provides mentally competent terminally ill adults ability to request and receive prescription medication to cause death. Prior to the enactment of such legislation, individuals had the right to refuse life sustaining treatment themselves, or via an authorized health care proxy.
Since the recent passing the Medical Aid in Dying law in New York (Legislation S138/A136) Gov. Hochul made New York the 13th state to adopt a form of this law. This article will highlight the requirements to be met in New York for a patient to qualify for Medical Aid in Dying, as well as some of the most prevalent arguments (aside from religious arguments) both for and against the new law.
The requirements in New York are considered to be the strictest of the thirteen states in which the law has been passed. Patients requesting Medical Aid in Dying must have a medical prognosis of six months or less to live. The request must be recorded (either audio or video). Additionally, physical examination by two physicians is required as well as affirmation by a mental health professional that the person is capable of making an informed decision. The law then requires "compounding" pharmacies to wait five days after the other requirements are met before filling the prescription for life ending medication. The final requirement is that the patient must be able to self- administer the medication by mixing the powdered medication with a liquid, and drinking it, or using a feeding tube.
There are very few health insurers that will provide coverage for aid in dying, Medicare does not pay for it, thereby creating a financial barrier to many.
Proponents of medical aid in dying (also known as physician assisted suicide) argue that patients have the right to die with dignity, end their pain and suffering, allow them to say good-bye to loved ones and reduce financial and other burdens on their loved ones.
Aside from religious objections to taking one's life, some non-religious arguments made by people opposed to the law are that assisted dying contradicts a key principle of the Hippocratic Oath taken by physicians- to protect life and health and improve the patient's quality of life. Another frequent objection is that the law will affect not only those who utilize the law, but those who may be eligible being offered the medical assistance in dying without asking for it, with the requirements eroding over time, and changing palliative and hospice type care over time.
In summary, the passage of the Medical Aid in Dying law provides terminally ill individuals and option to end their suffering, however the law also has the potential to change the care provided to the dying. While there are currently strict procedures delineated in the law, it remains to be seen if these requirements will change over time, or if the terminally ill may be offered this assistance as an option along with or in place of other types of terminal care. It is clear that an individual must have the capacity to request and self administer the medications, and Medical Aid in Dying cannot be undertaken at the request of a health care agent. It is however not a requirement for the patient requesting aid in dying to have exhausted other treatment options without relief from suffering, or to have had specific counseling for other available treatment.