By: Anthony J. Enea, Esq.
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. While the issue of euthanasia and/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 forty to fifty years ago.
While euthanasia is illegal in most states and has been found morally unethical by many organized religions, there are now four states (Washington, Oregon, Vermont and Montana) where physician assisted dying (PAD) is permitted. Additionally, it is also permitted in Bernalillo County, New Mexico.
The major distinction between euthanasia and PAD 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.
New York State Assemblywoman, Amy Paulin, D-Scarsdale, has sponsored the Aid-in-Dying bill in the Assembly, while Senator John Bonacic, R- Mt. Hope (Orange County), has sponsored the bill in the Senate. The proposed legislation was first introduced in February 2015, and a new push for its enactment has occurred this February.
Under the proposed legislation, the Public Health Law of New York would be amended to include a new Article 28-F "Aid in Dying" provision. The proposed legislation would permit a terminally ill adult (age 21 years or older and expected to live six months or less because of terminal illness or condition) who has the capacity (ability) 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 proposed 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 medication(s) intended to minimize the discomfort to the patient.
The request for this medication must be made in a writing which is signed and dated by the patient and witnessed by at least two (2) 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 proposed legislation provides that if, it 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 proposed 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 proposed legislation has bi-partisan support, it is not without controversy and opposition in the NYS Assembly and Senate. Only time will tell whether the legislation is enacted. 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, Esq. is the managing member of Enea, Scanlan & Sirignano, LLP with offices in White Plains and Somers, NY. Mr. Enea is a past chair of the New York State Bar Association’s Elder Law Section. He was named Best Lawyers’ 2016 Elder Law "Lawyer of the Year" in White Plains and Westchester County’s Leading Elder Care Attorney at the Above the Bar Awards. Mr. Enea can be reached at 914-269-2367 or A.Enea@esslawfirm.com.