“Unworkable”: How New Zealand’s Euthanasia Bill Can Be Improved

By Nithya Narayanan

 

David Seymour’s End of Life Choice Bill, introduced to the House in 2017, is arguably one of the most contentious pieces of legislation to have been floated in New Zealand Parliament. Unsurprisingly, the bill has triggered strong and highly emotional responses since its introduction. In a 2018 debate, ex-Prime Minister Bill English referred to the proposed legislation as “parliamentary-sanctioned murder”,[1] arguing that its lack of safeguards to protect both patients and medical professionals made it highly problematic.[2] Opinions on the other side are equally strong, with Dr Andrew Butler calling the status quo “barbaric” and “simply unacceptable”.[3] On 9 April 2019, the Select Committee report on the bill was released. The report describes the bill as “not workable in its present state”.[4] With strong arguments on both sides, the time is ripe to examine what exactly the Select Committee thinks of the bill, how it compares to the laws of other jurisdictions and what, in fact, could make it workable.

The Attorney-General’s report

One of the first things that the Select Committee comments on is the Attorney-General’s report. Section 7 of the New Zealand Bill of Rights Act (NZBORA) imposes an obligation on the Attorney-General to report on any inconsistencies with the NZBORA.[5] The Attorney-General, after reviewing the End of Life Choice Bill, concluded that the bill is inconsistent with s 19 of the NZBORA, which provides that everyone has the right to freedom from discrimination on the basis of age, beginning at the age of 16.[6] This is directed at the fact that, under clause 4 of the bill, only those aged 18 and over would be eligible for assisted dying. The Attorney-General went on to find that this age limit was not a justified limitation under s 5 of the NZBORA, noting that the inconsistency could be resolved either by reducing the age of eligibility to 16, or by removing the age criterion altogether.[7] Interestingly, he did not believe the bill was inconsistent with the right to not be deprived of life (s 8), freedom of conscience (s 13), or freedom of expression (s 14).[8] Incidentally, the Swiss law on euthanasia – one of the world’s most liberal – allows any person capable of judgment to choose assisted suicide, regardless of age.[9]

Grievous and irremediable conditions

The Select Committee notes that some submitters were particularly concerned about the broad range of conditions which could be considered “grievous and irremediable” under the bill.[10] These submitters pointed out that there are many “common” conditions which would be covered because they are incurable and painful, though not terminal. Examples cited included rheumatoid arthritis, chronic pain syndromes, cerebral palsy, and heart disease.[11] One way of remedying this issue could be to include more specific guidelines as to what constitutes “grievous and irremediable”. Canadian law, for instance, defines a “grievous and irremediable medical condition” as one where a person meets all of the following criteria:[12]

  • They have a serious and incurable illness, disease, or disability
  • They are in an advanced state of irreversible decline in capability
  • The illness, disease or disability or state of decline causes them enduring physical or psychological suffering that is intolerable to them, and that cannot be relieved under conditions that they consider acceptable
  • Their natural death has become reasonably foreseeable

Including a more detailed definition of “grievous and irremediable” – as in Canadian law – could help make the New Zealand bill clearer and narrower.

People with disabilities

Another concern outlined in the report is that the bill would allow people with disabilities to access assisted dying.[13] One concern is that this would promote a message that the lives of these people are less valuable.[14] Other submitters were worried that the legalisation of euthanasia would mean fewer resources would be spent on people with disabilities.[15] There were also concerns that the government would use assisted dying as a way to reduce health costs.[16] Some submitters believed that, given the potential drawbacks, people with disabilities should be barred from accessing euthanasia altogether.[17] Again, a possible solution to these concerns might be found in foreign models. Section 9 (3) of the Voluntary Assisted Dying Act (legislation that is due to come into effect in Victoria) provides explicitly that a person is not eligible for assisted dying solely because they suffer from a disability.[18]

Mental illness

There were also concerns raised about the bill allowing people with mental illness to access euthanasia.[19] Submissions noted that “suffering” is not limited to physical pain, and that it could be understood as a reference to psychological, social, or spiritual pain.[20] The primary concern among submitters was that mental illnesses are often temporary, easy to hide, and notoriously difficult to diagnose.[21] Others believed that individuals suffering from mental illnesses might lack the competence to make reasoned decisions about suicide.[22] On the other hand, it was also suggested that excluding those with mental illness would be discriminatory, and that it would diminish the pain suffered by those who are mentally ill.[23] Again, Australian law might be useful in terms of improving our own bill. Victoria’s Voluntary Assisted Dying Act specifies that a person is ineligible for voluntary dying if they have a mental illness only.[24] Another potential option could be to mirror Canadian law, which requires regular reviews to consider – among other things – requests where mental illness is the sole underlying medical condition.[25]

Coercion

Some submitters were concerned that individuals might choose euthanasia as a result of feeling that they were a burden to their families.[26] Submitters sometimes described this as feeling a “duty to die”.[27] Others noted that there could be overt pressure from caregivers and family members who might encourage the patient to access euthanasia.[28] It was also suggested that medical practitioners might coerce patients to make this decision.[29] Submitters pointed out that medical practitioners might encourage euthanasia when they were unable to treat a condition further, even though another practitioner might be able to do so.[30] It was argued that a patient’s choice would depend heavily on the advice received from their doctors, and that a patient might not question a doctor’s decision because of the high level of trust they place in them.[31] Some submissions suggested that assisted dying could become commercialised, and that medical practitioners might start their own businesses providing it.[32] They might then encourage euthanasia for their own financial benefit.[33]

In respect of coercion from family members, the report notes that the bill already has some safeguards in place. Under clause 8 (2)(h), the medical practitioner would have to do their best to ensure that the person seeking euthanasia was free from pressure from anyone else.[34] They would do this by speaking with other health practitioners and members of the person’s family.[35] However, many submitters believed this threshold was too low and too subjective, and that it would not ensure the absence of coercion.[36] An argument frequently put forth was that a person being coerced by family members is unlikely to give approval for their doctor to speak with those family members.[37]

One way of addressing the concerns around coercion could be to make the approval requirements more stringent. Currently, the bill requires a patient to, in the first instance, inform their attending medical practitioner.[38] That doctor must then talk to the patient about their illness, the nature of assisted dying, alternative options for end of life care, and other matters.[39] Once the request has been confirmed, the patient must sign and date the form in the presence of the practitioner.[40] Following this, an attending medical practitioner – and then an independent medical practitioner – must confirm that the person is eligible for assisted dying.[41] By contrast, other jurisdictions seem to impose more requirements. Oregon’s law, for instance, requires patients to make three requests in writing to their physician: two verbal requests and one written request that are at least 15 days apart. The written form must be completed with two witnesses after the applicant has seen both the prescribing doctor and the consulting doctor.[42] Applying a regime similar to Oregon’s could help allay concerns around coercion. The preliminary requirement of multiple requests – and the mandatory two-week gap between them – could help weed out cases of coercion, and could help to ensure that a patient’s decision to end their life is the correct one for them.

Medical opinions

The End of Life Choice Bill specifies that opinions would have to be reached by both attending and independent medical practitioners.[43] Under clause 12, the opinion of a psychiatrist (or psychologist) would also be required if the medical practitioners were unsure as to whether a patient was competent..[44] Several submitters believed it should be compulsory for a psychiatrist or psychologist to assess whether a person was competent to make a decision about assisted dying.[45] Others suggested that a panel of medical practitioners – with a range of specialties – should provide the second opinion, with support provided by a multi-disciplinary team including palliative care specialists.[46] It was also suggested that a process to appeal opinions should be created through the SCENZ Group, or through an independent appeal authority.[47] Interestingly, some submitters also highlighted a potential risk for unethical practice and collaboration between attending and independent medical practitioners, suggesting that the SCENZ Group should not allow consecutive or repetitive pairings so as to mitigate this risk.[48]

Conclusion

The End of Life Choice Bill is an ambitious and worthwhile piece of legislation, but it is a bill that could have explosive effects for our social landscape. The concerns outlined in the Select Committee report need to be carefully considered, and solutions found with recourse to foreign models where appropriate. The right to choose the timing of one’s death is a valuable one and can confer great dignity on the suffering. However, the scope of the bill needs to be carefully circumscribed to ensure that it only provides for assisted dying in appropriate circumstances.

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[1] Ruby Macandrew “Fiery words as David Seymour and Bill English debate euthanasia bill” (4 October 2018) Stuff <www.stuff.co.nz>.

[2] Above n 1.

[3] Above n 1.

[4] End of Life Choice Bill 2017 (269 – 2) (select committee report) at 4.

[5] New Zealand Bill of Rights Act 1990, s 7.

[6] Above n 4, at 4.

[7] At 4.

[8] At 4.

[9] At 45.

[10] At 22.

[11] At 22.

[12] At 51.

[13] At 22.

[14] At 23.

[15] At 23.

[16] At 23.

[17] At 23.

[18] Voluntary Assisted Dying Act 2017 (Vic), s 9.

[19] Above n 4, at 23.

[20] At 23.

[21] At 23.

[22] At 23.

[23] At 24.

[24] At 52.

[25] At 50.

[26] At 30.

[27] At 30.

[28] At 30.

[29] At 31.

[30] At 31.

[31] At 31.

[32] At 31.

[33] At 31.

[34] At 32.

[35] At 32.

[36] At 32.

[37] At 32.

[38] End of Life Choice Bill 2017 (269 – 2), cl 8.

[39] Above n 38.

[40] Above n 38, cl 9.

[41] Above n 38, cl 10.

[42] Above n 4, at 46.

[43] Above n 38, cl 10.

[44] Above n 38, cl 12.

[45] Above n 4, at 33.

[46] At 33.

[47] At 33.

[48] At 33.