The End of Life Choice Act

 

The End of Life Choice Act 2019 proposes to legalise ‘assisted dying’, a euphemism for voluntary euthanasia and assisted suicide.

It’s about only one end-of-life choice: the administration of a lethal dose of medication.

During the October 2020 general election there will be a binding referendum on whether the End of Life Choice Act should come into force (start to operate as law).

There are good reasons why even people who support ‘assisted dying’ in principle need to vote “no” to this particular Act. The End of Life Choice Act lacks important safeguards which are included in overseas laws.

Most of these missing safeguards were not debated by Parliament, because the Committee of the Whole House sessions were cut short and there were “deals made in closed rooms”.

Scroll down for some key issues with the End of Life Choice Act.

Which choices would the End of Life Choice Act legalise?

  •  A Curia Market Research Poll found that most Kiwis are confused about which end-of-life choices the End of Life Choice Act would legalise.
  • The End of Life Choice Act is NOT about making it legal to turn off life support, to make a ‘do-not-resuscitate’ request (no CPR) or to stop medical treatment. These end-of-life choices are already legal and not euthanasia. In these situations, a person would die of natural causes – from their underlying medical condition. Read more here about the ethical differences.
  • The End of Life Choice Act is NOT about pain relief. It’s already legal for a doctor to give a person enough medication to address their pain and make them comfortable, even if this may hasten their death as a side effect.
  • The End of Life Choice Act would NOT make it legal to end one’s own life, because the law already allows a person to do so. Suicide is not illegal. The Crimes Act 1961 doesn’t prohibit suicide, only < href="http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM329347.html" rel="nofollow noopener">assisting in someone else’s suicide. It is suicide when a person intentionally ends their own life without assistance.
  • Although the End of Life Choice Act doesn’t mention the words “euthanasia” and “assisted suicide”, these practices are what the Act aims to legalise. A death is assisted suicide when a person has received help to end their own life, for example, to access a deadly dose to swallow or self-administer. It is assisted suicide when the person who died took the final action that ended their life.
  • It is euthanasia when someone else takes the final action that ends the person’s life, for example by administering a lethal injection.

Lack of Safeguards

  • No independent witnesses are required at any point in the process to confirm that the person was not pressured by the doctor or anyone else. (The doctor or nurse practitioner is not an independent witness.) If a person changed their mind but the doctor or nurse practitioner administered the lethal dose anyway, nobody else may know.
  • The End of Life Choice Act lacks enforceable safeguards against pressure. Only the first doctor needs to “do their best to ensure that the person expresses their wish free from pressure” and stop the process if pressure is suspected. A person may experience pressure before they express their wish and without the doctor’s knowledge. This doctor doesn’t need to talk to the person face-to-face and doesn’t need to have met the person before. The doctor is permitted to speak only to family members who have been approved by the person. An abuser may be a friend or caregiver, or may be a family member who prohibits the person from giving the doctor permission to speak to them.
  • The Act prohibits a health practitioner from initiating a discussion on assisted dying with a patient, but there are loopholes:
    • The health practitioner may not initiate a discussion while proving a health service to the person. There’s nothing against doing so before or after providing the service, or against a non-health professional doing so.
    • The Act prohibits only those discussions that are specifically about “assisted dying under this Act”. The Act does not prohibit a health practitioner from discussing assisted dying in general or making a general suggestion to a person that they have lived long enough. 
    • Even if a health professional were to initiate a discussion with a patient they were not supposed to have, they would not commit a criminal offence (punishable by either imprisonment or a fine) but would face only the possibility of disciplinary action from a professional body.
  • This safeguard is unenforceable because there is no requirement for independent witnesses to be present during the process. The only witness to a health practitioner’s pressure may be the victim who died.
  • A person doesn’t need to certify that they have asked someone else to sign the request on their behalf. The form needs to be signed in the person’s “presence”, but the meaning of “presence” is not defined in the Act.
  • The person signing the form might readily claim that they don’t “know” for certain that they stand to gain from the death even if they may be likely to inherit. The form could be signed by someone who is pressuring the person to request death. There is also no protection against a person being pressured to sign the form on someone else’s behalf.
  • Even a provisionally-registered doctor, fresh out of medical school with provisional registration, could be an attending medical practitioner (the first doctor in the process).

Lack of Oversight

  • The poacher may also be the gamekeeper: The two health practitioners on the Review Committee could be reviewing a case which they were both personally involved in.
  • Nobody would be responsible for reviewing all the forms pertaining to a particular case. Nobody needs to check whether the report completed after the death contradicts information on the forms completed before the death. Contrary to the Review Committees in the Netherlands, the Review Committee set up by the End of Life Choice Act would receive only the ‘assisted death report’ and no information about the person’s medical records.

Issues with Eligibility

  • An eligible person needs to have New Zealand citizenship or permanent residence, but does not need to be physically living in New Zealand. The End of Life Choice Act will therefore allow some death tourism. This is not the case in the USA or Australia.
  • The End of Life Choice Act states that an eligible person would have a terminal illness that is likely to end their life within 6 months”.However, ‘terminal illness’ is not defined in the End of Life Choice Act. It could be interpreted to include any condition that is life-limiting or life-threatening. There is no bright line between terminal conditions and chronic conditions. Some chronic conditions can become life-threatening in a matter of minutes, for example, diabetes, asthma, severe allergies and high blood pressure. There is also no bright line between terminal illness and disabilities, because some disabilities are life-limiting and involve complications that can become life-threatening. Even clinical depression could be regarded as a terminal condition by some, because it could lead to death (suicide), or to losing the will to live and fight a disease.
  • The “6 months” prognosis is arbitrary. Do people with 6 months to live suffer more than people with 7 months, or a year, or 10 years, to live? Not necessarily.
  • Diagnosis and prognosis can be wrong. It’s impossible for doctors to accurately predict how long a person will live, especially as far as six months out. There have been cases of people who were expected to die within hours or days, but they recovered and lived for months or years. Diagnosis can also be wrong, despite a doctor’s best intentions. Diagnosis and prognosis are not based on certainty, but on probability (the likelihood based on other cases). There is no guarantee that an individual’s disease will progress at the same rate as it has in other people’s bodies.
  • The End of Life Choice Act discriminates on the ground of disability and targets disabled people:

     

    • In order to be eligible, a person needs to have a terminal illness as well as a worsening physical disability. (The Act states that an eligible person needs to be “in an advanced state of irreversible decline in physical capability”. A ‘decline in physical capability’ is another way of describing a ‘worsening physical disability’.)
    • In order to be eligible, a person’s decline in capability does not need to be related t9o their terminal illness.
    • The Act doesn’t define what is meant by ‘capability’. Might a person be “in an advanced state of irreversible decline in physical capability” if they have become less able to run, walk or read? Might a person’s ‘decline in capability’ become ‘irreversible’ simply because they choose to refuse available medical treatment?

 

Section 5: Meaning of person who is eligible for assisted dying

 

In this Act, person who is eligible for assisted dying means a person or eligible person means a person who—

(a) is aged 18 years or over; and

(b) is—

(i) a person who has New Zealand citizenship as provided in the Citizenship Act 1977; or

(ii) a permanent resident as defined in section 4 of the Immigration Act 2009; and

(c) suffers from a terminal illness that is likely to end their life within 6 months; and

(d) is in an advanced state of irreversible decline in physical capability; and

(e) experiences unbearable suffering that cannot be relieved in a manner that the person considers tolerable; and

(f) is competent to make an informed decision about assisted dying.

(2) A person is not a person who is eligible for assisted dying by reason only that the person—

(a) is suffering from any form of mental disorder or mental illness; or

(b) has a disability of any kind; or

(c) is of advanced age.

 

 

Section 6: Meaning of competent to make an informed decision about assisted dying

In this Act, a person is competent to make an informed decision about assisted dying if the person is able to—

(a) understand information about the nature of assisted dying that is relevant to the decision; and

(b) retain that information to the extent necessary to make the decisions; and

(c) use or weigh that information, as part of the process of making the decision; and

(d) communicate the decision in some way.

Lack of Freedom of Conscience Rights Protection

  • A doctor who believes an assisted dying request is motivated by a mental illness would still be forced to steer the person towards death. The doctor would have only two options: to continue with the process themselves or to direct the person to the SCENZ Group who would continue the process. The Act does not allow a doctor to refuse an assisted dying request for clinical reasons.
  • Doctors who work as contractors would not be protected from discrimination in the workplace if they opt out of the euthanasia process.

 

History of the End of Life Choice Act 2019

  • The End of Life Choice Bill was drawn from the Member’s Ballot on 8 June 2017.
  • The first reading on the Bill passed with 76 votes in favour and 44 votes against on 13 December 2017. MP Simon O’Connor requested that every MP who wishes to speak would be allowed to do so, but another MP objected.
  • Parliament’s Justice Committee accepted submissions from the public until 6 March 2018.
  • The Committee considered 39,159 submissions – the most Parliament has ever received on any bill or issue. The Committee heard oral evidence from 1,350 submitters (77 organisations and 1,273 individuals) at hearings in Whangarei, Auckland, Tauranga, Rotorua, Hamilton, New Plymouth, Whanganui, Napier, Palmerston North, Wellington, Nelson, Christchurch, Dunedin, and Invercargill. See page 9 of their report.
  • A full analysis of the written submissions revealed that over 90% of submissions were opposed to the End of Life Choice Bill. Over 93 % of submissions from health professionals were opposed. Over 90% of total submissions made no reference to religious arguments.
  • The Committee of the House stage started on 31 July with a debate on Part 1 of the Bill.
  • Clauses 1 (title) and 2 (commencement) were debated on 23 October. Parliament decided (63 votes in favour and 57 opposed) that if the bill were passed by Parliament, there would be a binding referendum to decide whether the Bill would come into force a year later.
  • In total, 114 Supplementary Order Papers were proposed. Only three passed (the one proposed by David Seymour and the two on the referendum proposed by Jenny Marcroft). Of the 111 amendments that were rejected, 110 were from opponents to the Bill.
  • On 13 November 2019 Parliament voted 69 votes to 51 in favour of its third reading
  • The End of Life Choice Bill became the End of Life Choice Act 2019 on 16 November 2019.
  • There will be a binding referendum at the next general election to decide whether the End of Life Choice Act 2019 would come into force (start operating as law).