Explaining the Medical Aid in Dying Act

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Richard Rifkin, Esq.*

August 4, 2025

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Introduction

This spring, legislation entitled the “Medical Aid in Dying Act” (A.136/S.138) passed in both houses of the New York State Legislature. It will next be submitted to the Governor of the State of New York, who must decide whether to approve or veto the bill. The following is a summary of the major provisions in the legislation.

In short, the bill would establish a procedure by which a qualified person, hereinafter called “the patient,” may obtain medication designed to enable the patient to choose to “bring about [their own] death.”¹ The procedural requirements include the involvement of both an attending physician and a consulting physician. Additional professionals may be needed, such as mental health professionals or language interpreters.

The Patient’s Request

The process starts with both oral and written requests for the life-ending medication made by a qualifying patient to their attending physician.² The written request must be witnessed by at least two adults who can attest that to the best of their knowledge and belief the patient is acting voluntarily and making the request of the patient’s own volition.³ The witnesses may not be: (1) a relative by blood, marriage, or adoption; (2) a person entitled to any portion of the patient’s estate; (3) an owner, operator, employee, or independent contractor of a health care facility where the patient is receiving treatment or is a resident; (4) a domestic partner of the patient; (5) a patient’s health care proxy; (6) an agent acting under a power of attorney; or (7) the attending or consulting physician or the mental health professional.

The request for the medication must be made by the qualified patient and not any other person.⁴ The bill includes the specific language to be used in making such a request,⁵ and provides that a request, once made, can be rescinded by the patient at any time.⁶ It also includes the language to be used by those who sign as witnesses and by any interpreter who participates in the process.⁷

Attending Physician Responsibilities

The attending physician must evaluate the patient and the patient’s relevant medical records to make a determination as to whether the patient has a terminal illness or condition,⁸ which is defined in the bill as “an incurable and irreversible illness or condition that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.”⁹ This physician must also determine whether the patient has decision-making capacity, has made an informed decision, and has made the request voluntarily, without coercion.¹⁰

Beyond these requirements, the attending physician must refer the patient to a consulting physician for a second opinion and to confirm all of the findings that the attending physician has reached.¹¹ The attending physician must also make a referral to a mental health professional if the attending physician believes that the patient may lack decision-making capacity to make an informed decision.¹² The attending physician must also make efforts to ensure that the patient is making an informed decision by discussing with the patient such subjects as the medical diagnosis, potential risks, probable results, possibility that the patient may choose to decide at any time to rescind the request or to obtain the medication but not take it, and feasible alternatives and treatment options.¹³ Finally, the attending physician is required to prepare careful records of all the above.¹⁴

Consulting Physician Responsibilities

A consulting physician, after examining the patient and the patient’s medical records, must confirm, in writing, to the attending physician and the patient whether (a) the patient has a terminal illness or condition; (b) the patient is making an informed decision; (c) the patient has decision-making capacity; and (d) the patient is acting voluntarily.¹⁵

Referral to Mental Health Professional

If either physician determines that the patient may lack decision-making capacity, they must refer the patient to a mental health professional for a determination as to whether the patient can make an informed decision.¹⁶ A qualifying mental health professional may be a licensed physician, psychiatric nurse practitioner, or psychologist.¹⁷ If the mental health professional determines that the patient lacks such decision-making capacity, the patient becomes ineligible and the attending physician is prohibited from prescribing the medication.

Interpreter Responsibilities

An interpreter may be required for patients who prefer to use a language other than English. The patient’s written request must be written in the same language as any conversations, consultations, or interpreted conversations between a patient and at least one of the patient’s physicians.¹⁸ The written request may be prepared in English even when such conversations or consultations were conducted in a language other than English. The interpreter must have no relation to or connection with the patient. If an interpreter was used, the interpreter must provide a written declaration using the language provided in the bill.¹⁹

Protections and Immunities

The bill expressly states that no person shall qualify for medical aid in dying solely because of age or disability.²⁰

The bill also includes legal protections for medical professionals. They may not be held civilly, administratively, or criminally liable or be subject to disciplinary action for taking any reasonable good faith action or for refusing to act.²¹ This exemption does not apply to “negligence, recklessness or intentional misconduct.”²²

In addition, no medical professional or health care provider is under any legal duty to participate in the actions authorized by this bill. If a private health care facility prohibits the actions authorized by the bill—whether for religious reasons, moral convictions, or any other reason—while a patient is being treated or residing in the health care facility, the facility must help to transfer a patient residing in the facility to another facility that is reasonably accessible and will allow the patient to proceed with their wishes.²³

The bill requires that the death certificate, which may be signed by the attending physician, shall show the cause of death to be the patient’s underlying illness.²⁴ It further provides that the patient will not be considered suicidal, nor may the death be deemed a suicide.²⁵ It also precludes medical aid in dying being referred to as “assisted suicide, attempted suicide, promoting a suicide attempt, mercy killing or homicide….”²⁶ This provision makes it clear to third parties, such as insurance companies, that they cannot use any of these concepts to affect a contract or any other obligation.²⁷

Reporting Requirements

The Commissioner of Health is required to adopt regulations establishing reporting requirements for physicians acting under the provisions of the bill. The information submitted is confidential and not available to the public, thereby protecting the privacy of each patient. In addition, the Commissioner must issue an annual report based on the relevant data regarding the utilization of and compliance with the provisions of the bill. This report must be sent to the state legislature and posted on the department’s website.

Safe Disposal of Medications

The bill provides for the safe disposal of unused medication. The bill states: “A person who has custody or control of any unused medication prescribed under this article after the death of the qualified individual shall personally deliver the unused medication for disposal to the nearest qualified facility that properly disposes of controlled substances or shall dispose of it by lawful means in accordance with regulations made by the commissioner, regulations made by or guidelines of the commissioner of education, or guidelines of a federal drug enforcement administration approved take-back program.”²⁸

Conclusion

New York is among 18 states considering legislation to authorize medical aid in dying.²⁹ Eleven states and the District of Columbia have passed laws permitting the practice, all of which have different requirements. If enacted, the bill would make New York the 12th state in the country to authorize medical aid in dying.³⁰

In brief, this is a complex and controversial bill. It is now up to the Governor to decide whether to sign or veto the legislation.

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