A Review of the End of Life Choice Act (2019) is underway. The Nathaniel Centre for Bioethics has made a public submission (Tier 2) to the Ministry of Health concerning the Review.
The shape of the Nathaniel Centre ‘s submission (below) was defined by the questions the Ministry formulated.
Access to assisted dying
Do you think changes are needed to the eligibility requirements for a person to receive assisted dying?
i. An assisted death must remain a voluntary choice.
There are those who seek to broaden the parameters of eligibility to include persons who will not be competent at the time of administration, for example those with dementia. This would represent a major shift and a challenge to public perceptions of the safety provisions of the current Act.
ii. We do not wish to see removal of the current requirement that death must be within six months.
Removing this requirement so that, for example, only ‘grievous and irremediable suffering’ was required, would lead to a significant expansion in the numbers eligible for assisted death, as has happened in other jurisdictions.
While there are ‘hard cases’ currently not eligible, doing away with this requirement would put at risk much larger numbers of sick, disabled, and dying people whose lives may be seen as ‘not worth living’ or, even more worryingly, who may come to see themselves as a burden to family and society. This is particularly risky in the current ‘ableist’ environment that defines our society.
Safeguards
Do you think the Act provides sufficient safeguards to ensure that people only receive assisted dying if they are eligible, actively seek and consent to it, are competent to consent and provide their consent free from pressure from others?
i. We are concerned that no more than one percent of all applications for an assisted death are referred for a psychological or psychiatric assessment. An independent assessment by a suitably qualified person should be a requirement for every person who applies for an assisted death.
ii. There is currently no requirement for a ‘cooling off’ period to ensure that the decision for an assisted death is not hasty or impulsive. Overseas jurisdictions do allow for this, e.g. 15 days in Oregon, 9 in Victoria, or 10 in Canada.
iii. There is currently no requirement in the Act for the person’s competence to be assessed at the time of the administration of medication.
iv. There is currently no requirement for medical practitioners to undertake a formal assessment for coercion. (Refers to Clause 11 of the Act). Coercion can be informal, subtle, and difficult to detect.
Those requesting euthanasia/assisted death may be frail, powerless and vulnerable.
There needs to be a system of formal assessment of the possibility that the person seeking the end of life may be responding to pressures from family, or to notions about the ‘burden’ they may think they place on others by continuing to live.
v. There is no requirement for independent witnesses to be present at any stage of the process. Other jurisdictions include the need for independent witnesses to be present when the request is made (Victoria), and at the signing or the written request (Oregon, Victoria and Canada).
Process to receive assisted dying
Do you think any changes are needed to the process to apply for and receive assisted dying?
The Act does not require applicants to be screened for depression or other mental health issues. The opinion of a psychiatrist is required only if the attending or independent medical practitioners consider the applicant is not eligible.
Depression and mental health issues can be difficult to recognise and diagnose, something that is well understood in the justice system when a psychiatric examination may be demanded.
Practitioners providing assisted dying
Do you think changes should be made to the requirements for medical practitioners and nurse practitioners to provide parts of the assisted dying process?
i. Doctors must not be able to suggest the option of assisted death to their patients.
At a time of significant personal upheaval, fear, and vulnerability, for a doctor to raise the ‘option’ of assisted dying creates a risk that it will be interpreted by their patient as a ‘suggestion’ that it is the most desirable way forward – ‘Why else would the doctor talk about it?’
ii. the right to conscientious objection for Health Practitioners must not be weakened.
Under the current Act, an attending medical practitioner who has a conscientious objection must tell the patient and inform them that they have the ‘right to ask the SCENZ Group for the name and contact details of a replacement medical practitioner’. There should be no change to this requirement.
iii. Some practitioners may not object in principle to assisted dying but may be concerned that the Act is unworkable (e.g. when it says they must give a definite prognosis or try to ensure the patient’s request is not affected by pressure from others) and therefore may want to exercise their conscience
right to opt out of involvement in assisted dying on professional grounds.
Any expansion of the current eligibility criteria may also create new conscience issues for doctors who don’t currently object.
iv. The current ability for Institutions to exercise conscience must be protected.
While the EOLC Act is silent on institutions, it has been ruled ‘that organisations like hospice services, aged care facilities, or GP practices can object to assisted dying, as set out in the End of Life Choice Act, taking place on their premises or with the assistance of their staff’, under the right to freedom of conscience under the New Zealand Bill of Rights Act 1990.
Access to assisted death has been described as ‘working well’; there is no need to force institutions such as hospices or hospitals or rest homes to provide assisted death on their premises; such a change could bring about a significant impact on the atmosphere of these places and on the ability of the staff there to work in ways that support their approach to healthcare.
Oversight of assisted dying
Do you think changes are required to the roles and responsibilities of the entities established under the Act to oversee assisted dying?
i. Reporting and data are inadequate in New Zealand. The recording and reporting required by the Act is minimal.
The Review Committee is given only very basic information about things like the place, date and time of death, the method used (e.g. ingestion or injection), and any problems that occurred in the administration of the medication and how they were dealt with.
Other jurisdictions, for example, the Netherlands and Oregon, collect much more detailed data.
Oregon records and reports patients’ reasons for requesting assisted suicide, the time between ingestion of the medication and death, the types of complications observed and their frequency, and the length of the relationship between the patient and the doctor who prescribed the medication.
ii. To fully understand the application of the EOLC in New Zealand, to ensure it is applied correctly, and, in particular, to ensure that all the appropriate restrictions are observed, it is essential that more extensive data, such as that collected in Oregon and other jurisdictions, is collected and made publicly available.
In particular, there must be detailed reporting on the reasons people are applying for an assisted death.
iii. We also have serious concerns about the robust operation of the Review Committee, including long periods with key vacancies and insufficient data to be able to review the safe operating of the Act.
Alignment with the wider health system
Do you think the assisted dying process aligns with other parts of the health system?
Providing an assisted death is not part of healthcare. It is, in fact, the antithesis of ‘healthcare’ since it means the end of healthcare.
It is not a medical procedure, and doctors should play no role in its practice. If we wish to continue to provide assisted dying as a legally permissible activity, it should be set up outside of medicine.
Many Medical Associations around the world hold that physician assisted suicide and euthanasia are unethical, even if they are made legal.
Is there anything that could be improved?
While, as argued above, assisted dying is distinguishable from the provision of healthcare (and should not be described as an act of medical care), its safe operation within Aotearoa must be evaluated from a systems perspective – it does not operate in isolation from, or without being influenced by, the broader healthcare environment that currently exists. This means:
i. The Aotearoa New Zealand health and care systems are widely described as ‘in crisis’ at present.
Expanding access to assisted death to those who may suffer from dementia, disability, or who have difficult or long-term health care needs, in the current crisis situation, is unsafe.
This represents a strong reason NOT to broaden eligibility.
ii. Palliative Care needs to be properly funded. An assisted death is fully funded while quality palliative is neither fully funded nor equitably available throughout Aotearoa New Zealand.
True autonomy requires the ability to have a choice among options.
Currently many people in this country are unable to access quality palliative care.
It is of deep concern that the June 2024 Annual Report from the Registrar shows one in four applicants (22.4 percent) for assisted dying were not receiving palliative care, without detailing why this is the case. There needs to be more transparency around what lies behind this disturbing statistic.
Other feedback
Do you have any other feedback related to the Act?
Use of honest, clear language: We note the frequent use of the term “assisted death” in the Review document – a total of 38 times.
This is a more honest reflection of what takes place than the legal term employed in the Act – “assisted dying”.
We regard the term assisted dying as (i) a euphemism and (ii) as confusing the intentional premature death of people with what all good health-carers, especially palliative care staff, have done for centuries and continue to do – looking after people and assisting them to have a pain-free dignified death without intentionally hastening their death.
- The Nathaniel Centre – the New Zealand Catholic Bioethics Centre – is an agency of the New Zealand Catholic Bishops’ Conference. It seeks to bring the light of the Gospel and the moral tradition of the Catholic Church to issues in bioethics.