Stethoscope

The New Jersey "Medical Aid in Dying for the Terminally Ill Act," N.J.S.A. 26:16-1 et seq., took effect on Aug. 1, 2019. New Jersey was the eighth state to adopt such a law designed to permit a patient over 18 with a life expectancy of six months or less to die "with dignity." A recent effort to block implementation of the law was properly and prompted denied.

Under the act, "a terminally ill patient may make a written request for medication that the patient may choose to self- administer" and end his life. The patient must be an adult resident of New Jersey, capable, determined by his attending and consulting physicians to be terminally ill, and voluntarily expressed a wish to receive such mediation.

The act details the procedure for implementation relating to witnesses and the obligations of the attending physician, including assuring that the patient is "a qualified terminally ill patient" who voluntarily made the determination and that the patient is fully advised of the alternatives and provided opportunities for consultations. The doctor must advise the patient to notify next of kin. The physician must refer a patient who may not be capable to make an informed decision to a mental health professional to determine the patient's capacity to make the request. The physician must advise the patient of his right to rescind the request at any time.

The patient must make at least two oral requests and a written request, and at least 48 hours must elapse between the attending physician's receipt of the written request and writing a prescription. The act includes a form "request for medication to end my life in a humane and dignified manner" as well as a declaration of witnesses. The commissioner of health shall require that the health-care professional report certain information "on a form and in a manner prescribed by regulation of the commissioner."

Plaintiff Glassman, a medical doctor, claimed constitutional, substantive and procedural improprieties with the act. The Chancery Division found merit in the eighth cause of action because regulations had not been promulgated as required in the legislation. By order dated Aug. 27, the Appellate Division vacated the TRO and remanded for further proceeding. In a comprehensive opinion, it determined that the Chancery Division "abused its discretion in awarding preliminary injunctive relief because plaintiff failed to satisfy the standard enunciated in Crowe v De Gioia," 90 NJ 126 (1982).

Specifically, no irreparable harm to anyone was shown by the absence of regulations. "It was undisputed that no party has sought medical advice or assistance from plaintiff to implement any provision of the Act," and, in any event, the law makes clear that "participation by physicians like plaintiff is entirely voluntary." Any physician or health-care provider or facility unwilling to participate in ending the life of a fully-informed terminally patient shall "transfer any medical records to the new provider selected by the patient" who is willing to proceed under the act. Further, plaintiff "failed to demonstrate, by clear and convincing evidence, that the legal rights asserted in his verified complaint were well settled in his favor." Regulations were not necessary to implement the legislation, and plaintiff never sought adoption of any rules or regulations in the four months between enactment and its effective date. Moreover, plaintiff failed to show a "reasonable probability of success on the merits" in the absence of standing and given his ability to elect not to participate in the procedure resulting in termination of a life under the act. Finally, under the Crowe analysis, the rights of other terminally ill patients who desired enforcement of the act had to be considered.

The Supreme Court denied an emergent application to stay the Appellate Division's order that same day.

We agree with the orders of the Appellate Division and Supreme Court regarding the temporary restraints, but more importantly, we applaud how our courts handled this matter as expeditiously as they did, so as to permit terminally ill patients choosing to do so to seek the benefit of the Act during the course of the litigation.