Governor Hochul recently signed the Medical Aid in Dying Act (the “Act”), officially legalizing medical assistance in dying for terminally ill patients. 
https://www.governor.ny.gov/news/governor-hochul-signs-medical-aid-dying-act-new-york-state-law.
 
            The Act allows a “mentally competent, terminally ill patient” to request medication, which they would self-administer, for the purpose of accelerating their death. https://www.nysenate.gov/legislation/laws/PBH/A28-F.

           The request must be made orally and in writing, signed and dated by the patient, and witnessed by at least two adults, who among other restrictions cannot be related to the patient, entitled to any portion of their estate upon death, an employee of the healthcare facility they reside or receive treatment at, or a health care proxy. N.Y. Pub. Health Law §2899-D(3)
 
            The patients must make an Informed Decision, meaning they have been fully informed of (i) their medical diagnosis and prognosis; (ii) potential risks associated with taking the medication to be prescribed; (iii) probable result of taking the medication to be prescribed; (iv) possibility patient may choose not to obtain medication or may obtained it and decline to not self-administer; and (v) alternative treatment options. N.Y. Pub. Health Law §2899-D(7)
 
A Physician’s responsibility in regard to such request depends on the role the physician holds in the patients care and treatment:

  • An attending physician is the physician with the primary responsibility of caring for the patient and treating their illness or condition. Upon a request for medical aid in dying the attending physician must physically examine the patient to determine if they are eligible for such assistance.
  • A consulting physician is the physician qualified, either via their specialty or experience, to make a professional diagnosis/prognosis regarding the patient’s illness or condition. They would examine the patient, their medical records, and determine whether the decision is informed and voluntary.
  • A mental health professional is a physician certified by the Board of Psychiatry, psychiatric nurse practitioner, or psychologist. The mental health physician must evaluate and provide the attending and consulting physician a report as to whether the patient has the capacity to make an informed decision.

              If providers are not obligated to provide such services; but health care facilities (like hospitals or nursing homes) can prohibit such services if it is contrary to a formally adopted policy that is expressly based on a sincerely held religious belief or moral conviction central to the facilities operating principles and patients are aware of such policy.. N.Y. Pub. Health Law §2899-M
 
           The Act does not go into effect until August 5, 2026, to allow New York State’s Department of Health to implement regulations and ensure health care facilities properly prepare and train staff compliantly. Failure to comply or any violation of the act constitutes professional misconduct per the New York Education Law.
 


For help evaluating what consents, policies, procedures, and training you need to put in place to compliantly offer your patients’ medical aid in dying services, contact Jennifer at jennifer@kirschenbaumesq.com. (516)747-6700 ext. 302