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AID IN DYING
Aid in Dying is a process whereby a terminal adult competent patient requests a lethal prescription from a physician to end their suffering by self-administering a lethal dose of medication. This process is currently legal in Washington State, Oregon, Montana, Vermont, California and Colorado. Legislation is under consideration in New York and other states. Following are the essential provisions of the proposed New York Legislation.

Qualified Individual

  • 18 Years of Age or Older.
  • Resident of New York State.
  • Terminal, defined as having six months or less to live, as confirmed by both an Attending Physician and a Consulting Physician after their examination of the patient and review of relevant Medical Records, wherein both physicians must be qualified by specialty or experience in the diagnosis and prognosis of terminal illnesses, and where both physicians certify the capacity of the patient and the voluntariness of the request.
  • Must have capacity to understand relevant facts and circumstances of their condition, appreciate the risks and benefits of alternative treatments (including palliative care) and be able to make and express an informed voluntary choice about treatment.
  • Must make one oral and one written request for a prescription for medication which will end the patient’s life, if taken as prescribed.
  • Must have their capacity evaluated by a Mental Health Professional if either the Attending physician or Consulting physician doubts capacity.
  • Must have their written request witnessed by two individuals who affirm the patient’s capacity and the voluntariness of the request, one (witness) of whom must be an independent witness, who is not related to the patient by blood, marriage or adoption; who is not an heir of the patient’s estate; and who does not own, operate or work for a health care facility in which the patient resides or is receiving treatment.
  • Must be able to self-administer the prescription.
  • Must be given the opportunity to rescind the request for medication at any time under any circumstance, whether or not the patient has capacity at that time.
  • Once a patient satisfies these requirements, the patient has the right to have the Physician facilitate the filling and delivery of a prescription for a dose of medication that will end the patient’s life, if self-administered as prescribed.
  •  Aid in Dying Litigation: The Matter of Meyers v. Schneiderman (2017 NY Slip Op 06412) was decided by the Court of Appeals (New York’s highest Court) on September 7, 2017. Plaintiffs had sued the New York Attorney General and others claiming a Constitutional Right to Aid in Dying and other relief: Aid in Dying is a process whereby a terminal adult competent patient requests a lethal dose of barbiturates to self-administer, resulting in death.

Substantive Due Process Right to Aid in Dying: The Court concluded that precedent from the US Supreme Court and the Court of Appeals itself clearly established that there is no constitutional substantive due process right to Aid in Dying. The Court emphasized there is a long history and tradition in this country of protecting life by not allowing third parties to assist an individual in committing suicide.

Equal Protection: The Court also rejected the argument that Aid in Dying is equivalent to “terminal sedation”, which is a process where terminal patients whose suffering cannot be otherwise controlled are given high doses of barbiturates to keep them comfortable while they starve to death and dehydrate from the cessation of eating and drinking. Plaintiffs had argued that some terminal patients can refuse treatment (such as dialysis or a ventilator) which will result in death: They argued that since some terminal patients can end their lives by refusing or withdrawing life support, that therefore all terminal patients have a right to Aid in Dying. The Court disagreed, noting the distinction between Refusing or Withdrawing treatment versus Taking affirmative Action with the primary purpose to hasten death.

Aid in Dying as Manslaughter: Plaintiffs third argument was that Aid in Dying does not constitute manslaughter under the New York Penal Law against Assisted Suicide, because suicide involves the taking of one’s own life under circumstances where an individual would otherwise continue to live, while Aid in Dying is a process where the cause of death is the underlying terminal condition and not the patient’s choice to end their own life. The Court rejected this argument as well, noting that the manslaughter statute does not make such a definitional distinction, and without that statutory distinction, the Court would defer to the ordinary dictionary definition of suicide, which includes the behavior described in the AID process.

Justice Rivera’s Concurring Opinion indicated that if the relief requested had been limited to a patient with unbearable, unmanageable pain requesting Aid in Dying, that she may have been inclined to vote for that relief, but as the relief requested was a much broader form of relief for all terminal patients to be able to seek a lethal prescription, she could not support that request. Justice Rivera noted that as a patient’s anguish at end of life becomes unbearable, the State has less and less of an argument that they have a right to require the preservation of the individual’s life.

AID IN DYING: Legislation: There is no status change on the legislative front.  Earlier this year this Section adopted a position paper indicating that we supported the Aid in Dying Legislation, with the caveat that we wanted limitations on the authority of an interpreter/translator to control the Aid in Dying Process.  To our knowledge, no further action has been taken on this issue. We are not sure of the status of the paper we provided.

HEALTH CARE PROXY REGISTRY: Both the New York Senate and Assembly have pending versions of this Bill, which would establish a statewide registry for patients to file Health Care Proxies. If a medical provider determines that a patient lacks capacity and the provider can’t locate a proxy document for the patient, the provider would then access the registry to try and locate a health Care proxy document for the patient, prior to triggering the Family Health Care Decisions Act or other processes by which a health care decision maker for the incapacitated patient would be authorized to make decisions. In 2017, the Senate unanimously passed their version of the Bill, while the Assembly version was unable to make it out of committee.

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(518) 372-2827
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