Relates to the patient self-determination act; authorizes the dispensation of lethal doses of medication to certain individuals

Section 2 amends the Public Health Law by adding a new article 28-F, the Patient Self-Determination Act, comprised of the following sections:

§ 2899-d sets forth definitions.

§ 2899-e sets forth the circumstances in which an adult may make a written request for medication for the purpose of ending his or her life in accordance with the provisions of this article.

§ 2899-f provides that a request for medication shall be signed and dated by the patient and witnessed as provided in such section, identifying persons who shall not serve as witnesses. The patient's attending physician at the time the request shall not act as a witness.

§ 2899-g sets forth the responsibilities of the attending physician.

§ 2899-h provides that if in the opinion of the attending physician a patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, such physician shall refer the patient for counseling. 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 has capacity.

§ 2899-i sets forth the items that must be documented or filed in the patient's medical record.

§ 2899-j provides that only requests by New York state residents under the provisions of this article may be granted and sets forth the factors included that demonstrate New York state residency.

§ 2899-k provides that a physician, pharmacist, other health care professional or other person shall not be subject to civil or criminal liability or professional disciplinary action, and shall not be subject to discipline, suspension, loss of license, loss of privileges, or other penalty by any health care facility or health care provider, for taking any reasonable good-faith action or refusing to act under this article, including engaging in discussions with a patient relating to the risks and benefits of palliative care and end-of-life options in the circumstances described in this article and being present when a patient self-administers medication. The section further provides (i) a physician, nurse, pharmacist, or other person shall not be under any duty by law or contract to participate in the provision of medication to a patient, (ii) a private health care facility may prohibit the self-administering of medication under this article while the patient is being treated or residing in such facility if the requirements set forth in the section have been met, (iii) a health care facility that prohibits the self-administering of medication while the patient is being treated or residing in the facility may prohibit a physician from prescribing, dispensing or ordering medication for self-administering while the patient is being treated or residing in the facility provided the facility notified the physician in writing of its policy to prohibit such actions.

§ 2899-1 provides that (i) a patient who self-administers medication under this article will not be considered a person who is suicidal and self-administering medication under this article shall not be deemed to be suicide for any purpose, (ii) action taken in accordance with this article shall not be construed for any purpose to constitute suicide, assisted suicide, attempted suicide, promoting a suicide attempt, mercy killing, or homicide under the law, including as an accomplice or accessory or otherwise, (iii)a request by a patient to his or her attending physician to provide medication under this article shall not, by itself, provide the basis for the appointment of a guardian or conservator, (iv) no provision in a contract, will or other agreement, whether written or oral, to the extent the provision would affect whether a person may make or rescind a request for medication or take any other action under this article, shall be valid, (v) no obligation owing under any contract will be conditioned or affected by the making or rescinding of a request by a person for medication or taking any other action under this article, (vi) a person and his or her beneficiaries shall not be denied benefits under a life insurance policy for actions taken in accordance with this article, an insurer shall not provide any information in communications made to a person about the availability of medication under this article absent a request by such person or by his or her attending physician upon the request of such person and any communication shall not include both the denial of treatment and information as to the availability of medication under this article, (vii) the sale, procurement or issue of any professional malpractice insurance policy or the rate charged for the policy shall not be conditioned on or affected by whether the insured does or does not take or participate in any action under this article.

§ 2899-m provides for the adoption of rules and regulations by the DOH for the safe disposal of unused medications prescribed, dispensed or ordered under this article.

§ 2899-n provides that in the event a patient dies as a result of medication self-administered under this article, the death certificate shall indicate that the cause of death was the underlying terminal illness or condition of the patient.

§ 2899-o provides for the annual review by the commissioner of health of a sample of the records maintained under section twenty-eight hundred ninety-nine-i of this article. The section further provides that the department may adopt regulations establishing reporting requirements for physicians taking action under this article to determine utilization and compliance with this article. The information collected under this section shall be confidential and shall be collected in a manner that protects the privacy of the patient, his or her family, and any health care provider acting in connection with such patient under this article. The department shall prepare a report annually containing relevant data regarding utilization and compliance with this article and shall post such report on its website.

§ 2899-p provides the severability clause. Section 3 sets forth the effective date.

Justification

The highly publicized, planned death of Brittany Maynard has highlighted the need for terminally ill patients to be able to access aid in dying. Ms. Maynard, who was a native of California, was forced to move to Oregon to gain control of her dying process. Her death, and the accompanying press attention, led the California legislature to pass, and Governor Jerry Brown to sign, an aid in dying law on October 5, 2015.

The national debate that accompanies Ms. Maynard's plight focused the nation on the desire of patients with a terminal illness to determine for themselves - how and when they die. These patients, when mentally competent and without impaired judgment, should be afforded this right. Patients should not be forced to relocate to another state or to leave the country to control how their lives end. Patients seek to die with dignity, on their own terms, typically in their own homes, surrounded by their family and other loved ones.

New Yorkers strongly support empowering terminally-ill, mentally competent patients to control their own death. A 2015 poll found that 77% of all New Yorkers support aid in dying, including 75% of Catholics, 72% of Republicans, 67% of self-identified Conservatives, and 78% of New Yorkers Upstate.

Nationally, according to HealthDay/Harris poll findings released in December 2014, 74% of American adults believe that terminally ill patients in great pain should have the right to end their lives (14% were opposed). Gallup, which has been polling this issue since 1947, has found that a majority of Americans have supported aid in dying since 1973. Their most recent poll found 68% of Americans support aid in dying.

Physicians also support aid in dying. In a recent survey conducted by Medscape, 54% of physicians in the U.S. believe that aid in dying should be permitted, while only 31% opposed it.

The Patient Self-Determination Act will enable mentally competent, terminally ill patients to choose to self-administer medication to bring about a peaceful death. It also provides their physician, when acting in good faith in accordance with the provisions of the Act, protections from civil and criminal liability and professional disciplinary action.

This legislation includes a provision that a request for medication for the purpose of ending one's life should not be considered by itself grounds for the appointment of a guardian or a conservator out of an abundance of caution. A person who has been determined to have capacity to request medication under the Act should not be forced to undergo an additional proceeding resulting in delay, costs such as legal fees, and additional strain.

Five states - Oregon, Vermont, Washington, California and Montana allow physician assisted aid in dying. In addition, New Mexico had a court rule that patients have a constitutional right to aid in dying; that decision is under appeal.

Aid in dying legislation recently passed the New Jersey Assembly, and legislators in a total of 20 states, including all of New England, Maryland, North Carolina, Tennessee, Oklahoma, Utah, Wyoming and Missouri, have aid in dying bills pending.

Aid in dying legislation is supported by the American Public Health Association, the American Medical Women's Association, the American Medical Student Association, the American College of Legal Medicine, and Lamda Legal.

Legislative history

New bill.

Fiscal implications

None.

Effective date

Effective immediately.