ASSEMBLY JUDICIARY COMMITTEE

 

STATEMENT TO

 

ASSEMBLY, No. 1504

 

with committee amendments

 

STATE OF NEW JERSEY

 

DATED: †MARCH 12, 2018

 

††††† The Assembly Judiciary Committee reports favorably and with committee amendments Assembly Bill No. 1504.

††††† As amended by the committee, this bill establishes the ďAid in Dying for the Terminally Ill Act,Ē which will allow an adult New Jersey resident, who has the capacity to make health care decisions and who has been determined by that individualís attending and consulting physicians to be terminally ill, to obtain medication that the patient may self-administer to terminate the patientís life.† Under the bill, ďterminally illĒ is defined to mean the patient is in the terminal stage of an irreversibly fatal illness, disease, or condition with a prognosis, based upon reasonable medical certainty, of a life expectancy of six months or less.

††††† In order for a terminally ill patient to receive a prescription for medication under the bill, the patient is required to make two oral requests and one written request to the patientís attending physician for the medication.† The bill requires at least 15 days to elapse between the initial oral request and the second oral request, and between the patientís initial oral request and the writing of a prescription for the medication.† The patient may submit the written request for medication either when the patient makes the initial oral request, or at any time thereafter, but a minimum of 48 hours are to elapse between the attending physicianís receipt of the written request and the writing of a prescription for medication.

††††† When a patient makes an initial oral request for medication under the billís provisions, the attending physician is required to provide the patient with information about the risks, probable results, and alternatives to taking the medication; recommend that the patient participate in a consultation concerning concurrent or additional treatment opportunities, palliative care, comfort care, hospice care, and pain control options; and refer the patient to a health care professional who is qualified to discuss those alternative care and treatment options. The patient may choose, but is not required, to participate in such consultation.† The attending physician is also required to recommend that the patient notify the patientís next of kin of the request, but medication may not be denied if a patient declines, or is unable to, provide this notification.

††††† The attending physician is required to refer the patient to a consulting physician for the purpose of obtaining confirmation of the attending physicianís diagnosis.† Both the attending physician and the consulting physician are required to verify that the patient has made an informed decision when requesting medication under the bill.† When the patient makes the second oral request, the attending physician is to offer the patient an opportunity to rescind the request.† In addition, the attending physician is required to notify the patient that a request may be rescinded at any time and in any manner, regardless of the patientís mental state.

††††† A patient may make a written request for medication, in accordance with the billís provisions, so long as the patient:† is an adult resident of New Jersey, as demonstrated through documentation submitted to the attending physician; is capable; is terminally ill, as determined by the attending physician and confirmed by the consulting physician; and has voluntarily expressed a wish to receive a prescription for the medication.

††††† The bill requires a valid written request for medication to be in a form that is substantially similar to the form set forth in the bill.† The bill requires the written request to be signed and dated by the patient and witnessed by at least two individuals who attest, in the patientís presence, that, to the best of their knowledge and belief, the patient is capable and is acting voluntarily.

††††† The bill requires at least one of the witnesses to be a person who is not:

††††† (1)† a relative of the qualified patient by blood, marriage, or adoption;

††††† (2)† at the time the request is signed, entitled to any portion of the patientís estate upon the patientís death;

††††† (3)† an owner, operator, or employee of a health care facility, other than a long term care facility, where the patient is receiving medical treatment or is a resident.

††††† The patient's attending physician may not serve as a witness.

††††† A written request form will be required to include an indication as to whether the patient has informed the patientís next-of-kin about the request for medication and an indication as to whether concurrent or additional treatment consultations have been recommended by the attending physician or undertaken by the patient.

††††† If the patient complies with the billís oral and written request requirements, establishes State residency, and is found by both the attending physician and a consulting physician to be capable, to have a terminal illness, and to be acting voluntarily, the patient will be considered to be a ďqualified terminally ill patientĒ who is eligible to receive a prescription for medication.† The bill expressly provides that a person is not be considered to be a ďqualified terminally ill patientĒ solely on the basis of the personís age or disability or the diagnosis of a specific illness, disease, or condition.

††††† If either the attending physician or the consulting physician believes that the patient may lack capacity to make health care decisions, the physician will be required to refer the patient to a mental health care professional, which is defined in the amended bill to mean a licensed psychiatrist, psychologist, or clinical social worker, for a consultation to determine whether the patient is capable.† If such a referral is made, the attending physician is prohibited from issuing a prescription to the patient for medication under the bill unless the attending physician has received written notice, from the mental health care professional, affirming that the patient is capable.

††††† Prior to issuing a prescription for requested medication, the attending physician is required to ensure that all appropriate steps have been carried out, and requisite documentation submitted, in accordance with the billís provisions.† The patient's medical record is to include documentation of:† the patientís oral and written requests and the attending physicianís offer to rescind the request; the attending physicianís recommendation for concurrent or alternative care and treatment consultations, and whether the patient participated in a consultation; the attending physicianís and consulting physicianís medical diagnosis and prognosis, and their determinations that the patient is terminally ill, is capable of making the request, is acting voluntarily, and is making an informed decision; the results of any counseling sessions with a mental health care professional ordered for the patient; and a statement that all the requirements under the bill have been satisfied.

††††† A patient's request for, or the provision of, medication in compliance with the bill will not constitute abuse or neglect of an elderly person, and may not be used as the sole basis for the appointment of a guardian or conservator.† The bill specifies that a patientís guardian, conservator, or representative is not authorized to take any action on behalf of the patient in association with the making or rescinding of requests for medication under the billís provisions, except to communicate the patientís own health care decisions to a health care provider upon the patientís request.† The bill prohibits any contract, will, insurance policy, annuity, or other agreement from including a provision that conditions or restricts a personís ability to make or rescind a request for medication pursuant to the bill, and further specifies that the procurement or issuance of, or premiums or rates charged for, life, health, or accident insurance policies or annuities may not be conditioned upon the making or rescinding of a request for medication under the billís provisions.† An obligation owing under a contract, will, insurance policy, annuity, or other agreement executed before the billís effective date will not be affected by a patientís request, or rescission of a request, for medication under the bill.

††††† Any person who, without the patientís authorization, willfully alters or forges a request for medication pursuant to the bill, or conceals or destroys a rescission of that request, with the intent or effect of causing the patient's death, will be guilty of a crime of the second degree, which is punishable by imprisonment for a term of five to 10 years, a fine of up to $150,000, or both.† A person who coerces or exerts undue influence on a patient to request medication under the bill, or to destroy a rescission of a request, will be guilty of a crime of the third degree, which is punishable by imprisonment for a term of three to five years, a fine of up to $15,000, or both.† The bill does not impose any limit on liability for civil damages in association with the negligence or intentional misconduct of any person.

††††† The amended bill provides immunity from civil and criminal liability, from professional disciplinary action, and from censure, discipline, suspension, or loss of any licensure, certification, privileges, or membership for any action that is undertaken in compliance with the bill, including the act of being present when a qualified terminally ill patient takes the medication prescribed to the patient under the billís provisions.† As amended, the bill provides that this immunity also applies to any refusal to take actions in furtherance of, or to otherwise participate in, a request for medication made under the bill.† Any action undertaken in accordance with the bill will not be deemed to constitute patient abuse or neglect, suicide, assisted suicide, mercy killing, euthanasia, or homicide under any State law, and the bill expressly exempts actions taken pursuant to the bill from the provisions of N.J.S.2C:11-6, which makes it a crime to purposely aid a person in committing suicide.† These immunities will not apply to acts or omissions constituting gross negligence, recklessness, or willful misconduct.† Nothing in the bill is to be construed to authorize a physician or other person to end a patient's life by lethal injection, active euthanasia, or mercy killing.

††††† The bill amends section 1 of P.L.1991, c.270 (C.2A:62A-16), which establishes a ďduty to warnĒ when a health care professional believes that a patient intends to carry out physical violence against the patientís own self or against another person, in order to specify that that ďduty to warnĒ provisions are not applicable when a qualified terminally ill patient requests medication under the bill.

††††† The bill requires a patientís attending physician to notify the patient of the importance of taking the prescribed medication in the presence of another person and in a non-public place.† The bill specifies that, if any governmental entity incurs costs as a result of a patientís self-administration of medication in a public place, the governmental entity will have a claim against the patientís estate to recover those costs, along with reasonable attorney fees.

††††† The bill authorizes attending physicians, if registered with the federal Drug Enforcement Administration, to dispense requested medication, including ancillary medication designed to minimize discomfort, directly to the patient.† Otherwise, the attending physician may transmit the prescription to a pharmacist, who will dispense the medication directly to the patient, to the attending physician, or to an expressly identified agent of the patient.† Medication prescribed under the bill may not be dispensed by mail or other form of courier.†† Not later than 30 days after the dispensation of medication under the bill, the health care professional who dispensed the medication will be required to file a copy of the dispensing record with the Division of Consumer Affairs (Division) in the Department of Law and Public Safety.

††††† Any medication prescribed under the bill, which the patient chooses not to self-administer, is required to be disposed of by lawful means.† Lawful means includes, but is not limited to, disposing of the medication consistent with State and federal guidelines concerning disposal of prescription medications or surrendering the medication to a prescription medication drop-off receptacle.† No later than 30 days after the patientís death, the attending physician will be required to transmit documentation of the patientís death to the Division.† The Division is required, to the extent practicable, to coordinate the reporting of dispensing records and records of patient death with the process used for the reporting of prescription monitoring information.† The Division will be required to annually prepare and make available on its Internet website a statistical report of information collected pursuant to the billís provisions; information made available to the public will not include personal or identifying information.

††††† A health care facilityís existing policies and procedures will be required, to the maximum extent possible, to govern actions taken by health care providers pursuant to the bill.† Any action taken by a health care professional or facility to carry out the provisions of the bill is to be voluntary.† If a health care professional is unable or unwilling to participate in a request for medication under the bill, the professional will be required to refer the patient to another health care provider and provide the patientís medical records to that provider.

††††† This bill was pre-filed for introduction in the 2018-2019 session pending technical review.† As reported, the bill includes the changes required by technical review, which has been performed.

 

COMMITTEE AMENDMENTS:

††††† The committee amendments clarify that patients are to be advised of both concurrent and additional treatment opportunities, as well as palliative care, comfort care, hospice care, and pain control, when making a request for aid in dying medication under the bill.

††††† The committee amendments provide that licensed clinical social workers will be permitted to make a determination as to whether a patient has the capacity to make health care decisions; as introduced, the bill provided that only licensed psychiatrists and psychologists could make this determination.† The committee amendments additionally add a new definition of ďmental health care professional,Ē which includes licensed psychiatrists, psychologists, and clinical social workers, and add a provision requiring the State Board of Social Work Examiners to adopt rules and regulations to implement the provisions of the bill.† The committee amendments remove references concerning the referral of a patient to a mental health care professional if the attending or consulting physician thinks the patient may have a psychiatric or psychological disorder or depression that causes impaired judgment; as amended, the bill provides for such referrals when the attending or consulting physician thinks the patient may lack the capacity to make health care decisions.† The bill removes a definition of ďcounseling,Ē and various references to the term, that are obviated by these amendments.†

††††† The committee amendments revise the definition of ďself-administerĒ to clarify that the term will not be limited to ingesting the aid in dying medication, but will instead apply to the physical administration of the medication to the patientís own self.

††††† The committee amendments remove a provision that would have required that, if the patient is a resident in a long term care facility, a designated staff member of the facility is required to be one of the witnesses to the patientís written request.† The committee amendments further provide an exception to the prohibition against an owner, operator, or employee of a health care facility from being a witness to the patientís written request, to provide that this prohibition will not apply when the patient is a resident of a long term care facility.† The bill defines ďlong term care facilityĒ to mean a licensed nursing home, assisted living residence, comprehensive personal care home, residential health care facility, or dementia care home.

††††† The committee amendments remove certain language concerning when a patient has provided written consent for the patientís attending physician to contact a pharmacist regarding a prescription for aid in dying medication; the bill expressly provides elsewhere that the patient may provide such written consent when completing the written consent form, making the additional reference to the consent redundant.

††††† The committee amendments clarify that the means of lawfully disposing of unused aid in dying medication may include disposal consistent with State and federal guidelines concerning the disposal of prescription medications or surrender to a prescription medication drop-off receptacle.

††††† The committee amendments provide that, in addition to immunity from civil and criminal liability and professional disciplinary action, a person may not be subject to censure, discipline, suspension, or loss of any licensure, certification, privileges, or membership for any action taken in compliance with the bill.† The committee amendments further provide that these protections also apply to the refusal to take any action in furtherance of, or to otherwise participate in, a request for medication under the bill.

††††† The committee amendments clarify that, in addition to not constituting patient abuse or neglect, suicide, assisted suicide, mercy killing, or homicide, actions taken in connection with a request for medication under the bill will not constitute euthanasia.†

††††† The committee amendments provide that, in addition to not providing the sole basis for the appointment of a guardian or conservator, a patientís request for, or the provision of, medication under the bill will not constitute abuse or neglect of an elderly person.

††††† The committee amendments provide that the immunities and protections established under the bill do not apply to acts or omissions that constitute gross negligence, recklessness, or willful misconduct.