A new law that goes into effect Aug. 1, will allow terminally ill patients to request a prescription to die. New Jersey will be the eighth jurisdiction to allow terminally ill adult residents to request prescriptions from their doctors for medication to end their lives.
Rutgers School of Public Health palliative care experts Paul Duberstein, professor and chair of the Department of Health Behavior, Society and Policy at Rutgers School of Public Health and Elissa Kozlov, RBHS instructor in the Department of Health Behavior, Society, and Policy Rutgers School of Public Health, core faculty at Rutgers Institute for Health, Health Policy and Aging Research, discuss the ethical questions involved and what New Jersey can learn from other states with similar laws.
How does the law determine who can be prescribed this medication?
Duberstein: The law states that patients must have a prognosis, based upon reasonable medical certainty, of six months or less to live and are able to administer medicine themselves. Two witnesses must attest that the individual is capable and that their decision to die is voluntary. At least one of the witnesses must be disinterested, meaning that they cannot be perceived to benefit from the individual’s death. A second “consulting” physician must verify eligibility.
There are other safeguards, such as the person must make two oral requests within 15 days and a written request. The treating physician must refer the patient to a qualified health care professional to discuss care options, including pain relief, palliative care and hospice. If either the treating physician or consulting physician is uncertain about the patient’s mental capability, they may refer the patient to a qualified mental health professional.
What makes a mental health professional qualified to determine if a person has the capacity to decide to die?
Kozlov: Under the law, psychologists, psychiatrists and social workers can complete the evaluation, however, it’s important to note that very few of these providers have specific training with end-of-life issues. Studies done in Oregon, which passed the first such law in 1994, have shown that mental health professionals may lack the experience, training, knowledge and confidence to ethically participate in consultations surrounding physician aid in dying. Also, research shows that mental health practitioners with moral opposition to physician aid in dying were more likely to support stricter standards for competence and were less likely to believe that certain patients would ever be deemed competent to consent to physician aid in dying.
New Jersey might want to follow the lead of Washington and California, which have issued guidelines for mental health professionals participating in physician aid-in-dying laws to ensure that specialists apply the same standards to all patients.
What challenges might New Jersey experience in implementing this law?
Duberstein: The demand for this service might outstrip the supply of health care professionals who are willing and trained to participate. Even though there is no criminal or civil liability or professional disciplinary action for good faith compliance with the provisions of this law, some physicians, hospice providers or nursing home administrators will not want to participate.
There are also practical and ethical challenges. Currently, there is a shortage of Seconal, a drug that is frequently prescribed. And there is concern that some might wish to monetize aid-in-dying. After California passed an aid-in-dying law in 2016, a pharmaceutical company doubled the price of the drug.
What ethical considerations does this law raise?
Duberstein: The medical community has taken a neutral stance on such laws, but there is an ethical debate that is particularly relevant to New Jersey. The Governor’s Advisory Council on End-of-Life Care reported that dying New Jerseyans receive the most aggressive medical care in the nation, and other groups have equated aggressive care at the end of life with worse care. Access to hospice and palliative care here is relatively limited. Across the nation, there are too few home health aides, social workers’ case loads are exploding and employees in both fields are underpaid. I would feel better about the law if it was accompanied by a robust effort to improve the flagging aging, health and social services infrastructure.
The data from other states show that many people rescind their request for physician aid in dying after they have met with specialists to better manage their symptoms of pain, depression and anxiety, which speaks for the need to complement this bill with better access to high-quality end-of-life care.
There also are social justice and equity concerns. The medication costs from $4,000 to $5,000, but Medicare and VA benefits cannot be used. Not every family will have $5,000 at their disposal.
What can New Jersey learn from states that have passed similar laws?
Duberstein: One-third of the prescriptions written since Oregon passed its law have not been used. This implies that just having a prescription is helpful. There is also reason to believe that the law has helped individuals have conversations with their clinicians and family members about their care preferences.
The law has been helpful in other ways. For example, most people want to die at home, but too many die in hospitals and other care settings. In Oregon, 93 percent of people who used the law died at home, as that likely was their ultimate wish.