Column: What you need to know about New York’s Medical Aid in Dying Act

Every year, thousands of Americans grapple with excruciatingly painful terminal illnesses. For many of these individuals, the thought of their lives being unnecessarily prolonged is abhorrent. On May 23, New York came one step closer to allowing terminally ill patients to end their lives with the State Assembly Health Committee”™s passage of the Medical Aid in Dying Act.

While the issue of euthanasia or physician-assisted suicide has been front and center in the American psyche since the days of Dr. Kevorkian and Karen Ann Quinlan, the controversial nature of this issue is still as strong today as it was 40 to 50 years ago. Euthanasia is illegal in most states and has been found morally unethical by many organized religions. If the Medical Aid in Dying Act becomes law, New York will join just five other states ”” California, Montana, Oregon, Vermont and Washington ”” and one county ”” Bernalillo County, New Mexico ”” where physician-assisted dying, or PAD, is permitted.

State Assemblywoman Amy Paulin, D-Scarsdale, sponsored the bill in the Assembly, while Sen. Diane Savino, D-Staten Island, was its Senate sponsor. The 2016 legislative session ended last month without the bill being put to a vote in either chamber. Its sponsors expect it will advance to a floor vote during the next session.
The major distinction between euthanasia and physician-assisted dying is who administers the lethal dose. With euthanasia, the physician or other third party administers the lethal dose, whereas with PAD, the lethal dose is self-administered by the patient and the patient determines whether and when to administer it.

Under the Medical Aid in Dying Act, the Public Health Law of New York would be amended to include a new Article 28-F “Aid in Dying” provision. The legislation would permit a terminally ill adult ”” age 21 or older and expected to live six months or less because of terminal illness or condition ”” who has the capacity to understand and appreciate the nature and consequences of health care decisions, including risks and benefits, and who is able to reach and communicate an informed decision to a physician licensed to practice in New York state, to decide to end his or her life.

The legislation allows the attending physician ”” one who has primary responsibility for the care and treatment of a patient”™s terminal illness ”” to prescribe a lethal dose of medication to the terminally ill patient that he or she can self-administer. The medication has to be capable of ending life and can include any other ancillary medications intended to minimize the discomfort to the patient.

The request for this medication must be made in writing, signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief, the patient has capacity, is acting voluntarily and is not being coerced to sign the request. One of the witnesses cannot be a relative of the patient by blood or by marriage.

Additionally, the witnesses can neither be individuals who would be entitled to inherit upon the death of the patient, the attending physician, nor the owner or operator of a health care facility where the patient is residing or receiving treatment.

One of the issues that will surely arise when a decision is made by a terminally ill patient to end his or her life is whether the patient has the requisite capacity to make the decision. The legislation provides that if in the opinion of the attending physician, the patient is suffering from a psychiatric or psychological disorder or depression causing impaired judgment, the attending physician shall refer the patient for counseling.

The legislation further provides that no medication to end a patient”™s life shall be prescribed, dispensed or ordered until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment, and that the patient has the requisite capacity.

Although the legislation has bipartisan support, it is not without controversy and opposition in the state Assembly and Senate. The Assembly health committee”™s approval was by a narrow margin of votes, 14 to 11.

However, irrespective of where one”™s opinion falls on this issue, it is safe to say that whenever any legislation is proposed that allows one to end his or her own life, it should be approached carefully and with a great deal of caution and deliberation.

Anthony J. Enea is the managing member of Enea, Scanlan & Sirignano LLP, with offices in White Plains and Somers. He is a past chairman of the New York State Bar Association”™s Elder Law Section. He can be reached at 914-948-1500 or A.Enea@esslawfirm.com.