What Is Medical Aid In Dying… And What It Isn’t

By Brandon Vogel

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The issue is not whether we will die, but how we will die and who makes decisions at life’s end.

For terminally ill patients with decision-making capacity, there are options to hasten death such as stopping life-sustaining treatments or refusing food and water.

There is also the medical aid in dying option that David C. Leven, executive director emeritus and senior consultant of End of Life Choices New York), discussed on a recent CLE webinar.

The Medical Aid in Dying Act (A. 2694, S. 3947), with multiple sponsors, is under consideration in the New York State Legislature. Leven noted that the number of sponsors has dramatically increased over the past two-to-three years.

What It Is

Medical aid in dying occurs when a terminally ill, mentally competent adult patient, who is likely to die within six months, takes prescribed medicines, which must be self-administered, to end suffering and achieve a peaceful death.

Leven discussed this option, as well as never starting/stopping treatment, voluntarily stopping eating and drinking, and palliative sedation.

Voluntarily stopping eating and drinking is a “reasonable option” for some patients but it does take a week or ten days before a person dies, explained Leven. “It is a difficult process. You need palliative or hospice support and family support ordinarily.”

Medical aid in dying occurs throughout the country, but except where it is now authorized, it is done underground and likely illegally. It is legal in ten states and the District of Columbia. Oregon was the first state to authorize medical aid in dying in 1994. New Jersey authorized it in 2019. According to Leven, there are bills pending in about 20 jurisdictions.

Leven argued that the practice should be legal and reasonably regulated. Physicians and family members should not be at risk of punishment which they are now, said Leven.

A patient must make an oral and a written request (on a form provided in law). The written request must be witnessed by two adults who attest that the patient: has capacity; is acting voluntarily of their own volition; and is not being coerced. A patient may rescind a request for medication at any time without regard to capacity. Patients must self-administer the medication. An attending physician must have primary responsibility for the care of the patient requesting medical aid in dying and the treatment of the patient’s terminal illness.

Physicians, other health care providers and health care facilities acting within the law are protected from civil, criminal and professional liability. Likewise, physicians, nurses, pharmacists and other health care providers are under no obligation to participate in medical aid in dying.

Health care providers are not subject to civil or criminal liability, or professional disciplinary action for being present when medication is taken or for failing to prevent the medication from being taken. Private health care facilities may refuse to participate in medical aid in dying if they find it morally objectionable or if it is against their religion and they have informed the patient of the policy.

What It Isn’t

Medical aid in dying is not assisted suicide, according to the laws enacted to permit the practice, said Leven.

“Consider that stark differences exist between suicides and medical aid in dying. Suicides are committed by those, usually wo have mental health issues, who can continue to live, but choose not to; are done in isolation, often impulsively and violently, and they are tragic.”

Leven said, “To the contrary, medical aid in dying is available only to terminally ill patients who will soon die.”

These are people who don’t want to die, but their disease is killing them. The process takes at least several weeks (about 47 days) and occurs after consultation with two physicians and almost always with family support, with most dying patients receiving hospice care and it is empowering, rather than tragic.

Numerous associations, such as the American Public Health Association and the American Psychological Association, reject the term “assisted suicide.”

Medical aid in dying is rarely used as an end of life care option. Only about 1 in 250 deaths are by aid in dying, said Leven.

A June 2017 Gallup Poll revealed that 73% of respondents supported medical aid in dying, 24% were opposed while 3% had no opinion. A 2018 poll found that 63% of New Yorkers supported it while 29% opposed it.

If you’re struggling with grief or are overwhelmed regarding end of life decision making, please call the NYSBA Lawyer Assistance Program at 1-800-255-0569 or email [email protected]

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