Insights

The End of Life Choice Act 2019 (the Act) came into effect on 7 November 2021, 12 months after two-thirds of referendum voters voted in favour of legalising medically assisted dying in New Zealand.  It is the most significant change in New Zealand health law for some time.  No matter whether you are in favour or against the legislation, what’s important is that you understand how the Act should work. 

The purpose of the Act is to give individuals who have a terminal illness and who meet the criteria of an “eligible person” the option to lawfully request medical assistance to end their lives. It then establishes a lawful process to assist those “eligible persons” who choose to exercise the option. Given the literal life or death significance that this process can result in, it is crucial that the process is followed meticulously.  If the process is not followed exactly, it would mean that any assistance given to end someone’s life would be illegal.

Under the Act, anyone who would like assistance to die must tell their attending medical practitioner (e.g., doctor) of their request to do so.  The doctor does not need to be the person’s general practitioner, it can be a doctor who has tended to the person for any period of time. If a doctor has this request, they are required to give the person particular information including (among many other things) the prognosis of their terminal illness and the irreversible nature of assisted dying. They need to ensure that the person understands their other options for end-of-life care and encourage them to discuss their wishes with others e.g., family and friends. The doctor must also “do their best” to confer with other health practitioners who are in regular contact with the person and with approved members of the person’s family to ensure the person’s wish to receive assisted dying is free from pressure. However, if there is no other medical practitioner in regular contact and the person has not approved any family members then this safeguard is bypassed, and the process may be accelerated.  All this must be done even if the person is unlikely to be considered an “eligible person” under the Act. 

A doctor must not, in the course of providing a service to a person, initiate a discussion with the person that is substantially about assisted dying or make any suggestion that they should exercise their right under the Act.  The doctor can only discuss assisted dying under the Act or provide information following the request by the person themselves.  This is however, only in the context of providing a service to a person, it does not prevent a doctor from, for example, initiating a conversation about assisted dying in a family situation. 
 

Who can help?

Not all doctors will be in a position to discuss assisted dying with a patient. Doctors who wish to provide this service need to express an interest in being an attending health practitioner to be included on a list held by the Support and Consultation for End of Life New Zealand (SCENZ) group. A doctor is also not obliged to assist a person who wishes to exercise the option of receiving medically assisting dying if they have a conscientious objection to providing that assistance to the person.  In those circumstances, a doctor must tell the person of their conscientious objection and inform them of their right to ask the SCENZ Group for the name and contact details of a replacement doctor. 

Should the person still wish to proceed with the process, an approved form needs to be completed and the doctor must then provide an opinion that the person requesting the option is “eligible” for assisted dying.  A second independent doctor will also need to provide an opinion on the same basis. If either or both of the doctors are unsure about the competence of the person to make an informed decision, then a psychiatrist will need to provide a third opinion. 
 

Who is eligible?

Under the Act, an “eligible person” must be:

• at least 18 years of age; and
• a New Zealand citizen or permanent resident; and
• suffer from a terminal illness that is likely to end their life within six months; and
• is in an advanced state of irreversible decline in physical capability; and
• experiences unbearable suffering that cannot be relieved in a manner that the person considers tolerable; and
• is competent to make an informed decision about assisted dying.

A person is not eligible for assisted dying by reason only that they are suffering from any form of mental disorder or illness, have a disability of any kind, or are of advanced age.  However, these factors may be taken into account along with a terminal illness. 

Establishing age, citizenship, or residency, and whether a person is suffering from a terminal illness is likely to be relatively straightforward.  Understandably, there may be some contention as to whether a terminal illness is likely to end an individual’s life within six months however, that prognosis is required before proceeding further.

Where it becomes more difficult to determine eligibility is when phrases such as “unbearable suffering” and “cannot be relieved in a manner that the person considers tolerable” are used.  This is because these phrases refer to subjective matters that will be evaluated differently from person to person based on their ability to withstand pain or discomfort, and their ideas of what they are prepared to, and can, tolerate. In terms of “unbearable suffering”, the Act does not expressly require the suffering to be physical.  It is yet to be seen whether it could also mean mental and emotional suffering. There is also no express requirement that the “unbearable suffering” needs to be linked to the terminal illness.  While it is implied, it is not clear. 

Competence to make an informed decision is a long-held medico-legal concept that is task-specific. In light of the Act, a person is competent to make an informed decision about assisted dying if they are able to:

• understand information about the nature of assisted dying that is relevant to the decision; and
• retain that information to the extent necessary to make the decision; and
• use or weight that information as part of the process of making the decision; and
• communicate the decision in some way.

The competency of the person may already be compromised if all other criteria are met.  If any of the criteria for eligibility are not met, then the doctor needs to explain to the person why the decision that the person was ineligible was reached.  It should also be noted that a welfare guardian appointed under the Protection of Personal and Property Rights Act 1988 for a person does not, in that capacity, have the power to make any decision, or take any action for the person under this Act.

What happens if a person is eligible?

If all components are met and the person is considered an “eligible person” then the process continues. At this stage, the doctor needs to discuss, among other things, the progress of the person’s terminal illness, the likely timing for the administration of the medication, and advise the person that at any time, they may decide not to receive the medication. Other end-of-life options such as palliative care are always available. 

If at any time, the attending doctor has reasonable grounds to suspect that the person is being pressured by someone to receive assistance in dying, they must halt the process. The reason for this requirement may be found in statistics from other countries where assisted dying has been legalised. It can also be found in statistics relating to New Zealand’s elderly population. Elderly are the primary accessor of medically assisted dying in other countries.

Some 34% of Canadians who elected euthanasia cited “perceived burden on family, friends or caregivers” as a reason for requesting euthanasia[1]. Meanwhile, 59% of Oregonians assisted in suicide under their state’s Death with Dignity Act stated being a “burden on family, friends or caregivers” as a reason for requesting assisted suicide.[2] In New Zealand, 10% of our elderly suffer some form of abuse whether it be physical, sexual, psychological, financial or through neglect.[3]  We also have a rapidly aging population that is applying pressure to an over-burdened health system (a 2016 report indicates elderly New Zealanders are accessing 42% of the health services budget).[4]  As well as this, some New Zealand families have been priced out of the housing market and on average there are about 313 disputes about inheritance heard in our Family and High Courts every year.[5]

The requirement for a doctor to halt the process if they have reasonable grounds to suspect pressure does not go far enough.  “Reasonable grounds to suspect” is a legal concept. It requires more than a ‘hunch’, rather it is objective and requires enough information to show a reasonable person that there are grounds for the suspicion. Pressure can be difficult to detect, which in turn means it is difficult to gather information to show it is happening. It is only likely to be shown if the person or a family member speaks up. However, the attending doctor is not required to ask the person whether they feel pressured by others.

The Ministries of Health and Justice have estimated that in some cases there would be a minimum of four working days from request to death.  Unlike other countries, there is no statutory cooling-off period between the date of request and the administration of life-ending medication.  The Act must strike a balance between respecting the autonomy of the person on the one hand, and ensuring necessary safeguards are in place on the other.  While the Act needs to be functional and wide enough to give a person a choice, the process should not come at the expense of necessary safeguards.  Whether the Act in its current form has the appropriate safeguards, remains to be seen. 

Marcia Read

Solicitor

Marcia.read@gibsonsheat.com

04 916 6421

Disclaimer: The information contained here is of a general nature and should be used as a guide only. Any reference to law is to New Zealand law and legislation. We recommend before acting on it, you consult your accountant or tax adv