New Mexico’s End-of-Life Options Act

Death is something few people like to think about. Most of us hope we will pass peacefully and painlessly at the end of a long fulfilling life, surrounded by our loved ones. Unfortunately, too many people face an agonizing death after an excruciating illness and a too-short life. Cancer and other terminal illnesses rob sufferers not only of years, but often, of control over their lives and bodies in the limited time they have left.

New Mexico’s Elizabeth Whitefield End-of-Life Options Act (EOLO Act) was signed into law in 2021. The Act makes medical aid in dying available to patients who are terminally ill, restoring a measure of control over their last days to them. The Act was named for the late New Mexico judge who died after an 11-year battle with cancer that robbed her of the ability to work, to enjoy life, and even to eat and drink. During her final years, the Honorable Elizabeth E. Whitefield was an advocate for a law that would allow her and others like her to die with dignity.

Welcomed by some New Mexico residents, others opposed the law due to moral and ethical concerns or religious objections. Since the End-of-Life Options Act is now New Mexico law, it’s important to understand what the law is, who is eligible for medical aid in dying, and ethical safeguards built into the law.

What is “Medical Aid in Dying?”

Under the EOLO Act, medical aid in dying is a medical practice by which an eligible patient can request and receive from their qualified healthcare provider medicine that will lead to their death. The healthcare provider does not administer the medication; it is provided to the patient to self-administer if and when they choose.

Is Medical Aid in Dying Considered Suicide?

No. In New Mexico, the patient’s underlying terminal illness is listed on the death certificate as the cause of death. The EOLO Act specifies that self-administration of medication for medical aid in dying is not suicide.

Who is Eligible for Medical Aid in Dying?

One of the biggest ethical concerns about medical aid in dying is that it will be used to cause the death of someone against their will or someone who is not otherwise close to death, such as a patient with a severely disabling, but not terminal, condition.

To ensure that medical aid in dying is used to alleviate suffering and not to harm patients, there are strict requirements for eligibility under the End-of-Life Options Act:

• The patient must be an adult over the age of 18;
• The patient must be a resident of New Mexico;
• The patient must be terminally ill with a condition that is incurable and irreversible;
• Reasonable medical judgment must indicate that the patient has six months or less to live;
• The patient must have the mental capacity to understand the risks and benefits of healthcare treatments and to make their own informed decisions about care;
• The patient’s request for medical aid in dying must be voluntary; and
• The patient must be capable of self-administering the medication that will cause their death.

The healthcare provider who supplies the medication is responsible for confirming that the patient requesting it is eligible under the EOLO Act. That includes making a good-faith determination that the patient’s request is not the result of undue influence or coercion by another person. Also, in most cases, the diagnosis of a terminal illness must be confirmed by two healthcare providers, at least one of which is a physician.

Who is a “Qualified Healthcare Provider” Under the EOLO Act?

Under the Act, a qualified healthcare provider may be one of the following:

• A physician licensed under the Medical Practice Act;
• An osteopathic physician licensed under the Osteopathic Medicine Act;
• A nurse licensed in advance practice under the Nursing Practice Act; or
• A physician assistant licensed under the Physician Assistant Act or the Osteopathic Medicine Act.

How Can I Request Medical Aid in Dying?

If you wish to receive medical aid in dying, you must complete the “Request for Medication to End My Life in a Peaceful Manner” form and present it to a qualified healthcare provider. The form must be witnessed, and your family members cannot serve as witnesses.

In general, there is a 48-hour waiting period between the time you request the medication and the time the prescription can be filled. However, your healthcare provider can waive this waiting period if you are unlikely to survive the 48 hours.

Do All Qualifying New Mexico Healthcare Providers Have to Provide Medical Aid in Dying?

Helping another person to receive medical aid in dying is a momentous decision; a healthcare provider cannot ethically be forced to do so if they object to medical aid in dying for moral, ethical, religious, or other reasons. If you believe that you may want medical aid in dying, you should consult with your medical provider as to whether they would be willing to help you in this way. If they are not, they may be willing to refer you to a participating provider. Alternatively, you may want to seek out a different healthcare provider who will support your end-of-life wishes.

How Can I Get My Affairs in Order Before Using Medical Aid in Dying?

If you are seeking medical aid in dying, you are probably trying to minimize your own suffering, and perhaps that of the loved ones around you who would have to witness your pain. Another way to help your family and the people you love is by making sure that you have an estate plan in place. Making your last wishes known will lift a burden from the shoulders of your loved ones as they grieve. For your own peace of mind, you will also want to make sure that someone you trust is aware of your funeral wishes and has the authority to carry them out.

If you are learning about end-of-life options or medical aid in dying for yourself or your loved ones, our thoughts are with you. If we can do anything to help ease this difficult time, please contact our law office.