Katrina Bernadette

Currently, assisted suicide is illegal in New Zealand. Before David Seymour introduced the End of Life Choice Bill in 2017, there have been two attempts to legalise euthanasia. In 1995, the Death With Dignity Bill co-authored by National Party MP’s Cam Champion and Michael Laws went to Parliament. It failed by 61 votes against to 29 votes for. [1] The second attempt was in 2003. Deputy Leader of NZ First, Peter Brown, submitted another bill to legalise euthanasia. It was unsuccessful at its first reading by 60 votes against and 58 votes for.[2]There was another attempt in 2012 by Labour Party MP Maryan Street.[3] Street withdrew the bill in 2013.[4] ACT Party Leader David Seymour introduced the End of Life Choice Bill in 2015. The bill passed its first reading on 2017 with 76 votes in favour, 44 opposed.[5]This shift in perspective is monumental. The past two attempts did not pass the first reading in Parliament. Public support for euthanasia is also consistently positive. A survey done by the Voluntary Euthanasia Society in 2008 showed that 71% wanted euthanasia legalised.[6] A recent poll by Horizon in 2017 found that 75% were in favour of euthanasia.[7] The public support for assisted dying and a new generation of MPs are arguably significant factors that allowed the bill to pass its first reading.But what exactly does it say and should we, as a public, be worried?

Contents of the Bill

The purpose of the Bill is to “give people with a terminal illness or a grievous and irremediable medical condition the option of requesting assisted dying”.[8]The Bill, as it is, would only apply to a small number of people. It would allow citizens or permanent residents 18 years of age or over to request assisted dying provided that they are suffering from a terminal illness that will likely their end life within 6 months or a “grievous irremediable medical condition”. The person must also be in an advanced state of irreversible decline in capability; must experience an unbearable suffering that cannot be by remedied apart from euthanasia; understands euthanasia and its consequences.[9]If a person is eligible for assisted dying, they must undertake a lengthy process. First, they must inform their doctor. The doctor then must complete a form after talking to the patient and informing them of their illness, the irreversible nature of assisted dying and its consequences, and other matters as stated in s 8(2)(b)-(h).[10] The attending doctor will give their opinion and must also seek a second opinion from an independent practitioner.[11] If both doctors agree or disagree, they must still ask for a third opinion by an independent specialist from the SCENZ Group (Support and Consultation for End of Life in New Zealand).[12] If all three opinions reach a positive decision on the request, a doctor will inform the patient of the options for the medication and method as set out in s (15).[13]  If the patient chooses to receive the medication, the doctor has to fill out a form that an assisted death has occurred, to be sent to the registrar in the Ministry of Health. The registrar will then pass this to a review committee.[14]

The Debate

While this bill is arguably strict and comprehensive, there has been considerable debate in the courts, Parliament and in the public about allowing assisted dying in New Zealand.CourtsThe courts have had to deal with the legality of assisted dying many times. However, the recent High Court case Seales v Attorney-General is perhaps the most telling of the courts’ view regarding euthanasia.[15]Ms Seales, who was terminally ill from a brain tumour, sought a declaration that would allow her doctor to assist in her death. Seales sought two declarations. First, she sought two criminal declarations. She sought a declaration that her doctor would not commit murder or manslaughter if she assisted Seales to die by administering a fatal medication. The second was a declaration that the doctor would not be liable for assisting Seales suicide as prohibited in s 179 in the Crimes Act.[16]Seales also sought a declaration of inconsistency that the s 160 and s 179 of the Crimes Act were inconsistent with the right to life and the right not to be subjected to torture as set out in s 8 and 9 of the NZBORA.[17] These declarations were inspired by the Canadian Supreme Court decision of Carter v Canada in which the court struck down a provision in their Criminal Code due to it being in contrary to the Canadian Charter of Rights and Freedoms.[18]While he acknowledged that Seales’ arguments were persuasive, Justice Collins could not “issue any of the declarations sought by Ms Seales”:[19]

“Although Ms Seales has not obtained the outcomes she sought, she has selflessly provided a forum to clarify important aspects of New Zealand law. The complex legal, philosophical, moral and clinical issues raised by Ms Seales’ proceedings can only be addressed by Parliament passing legislation to amend the effect of the Crimes Act. I appreciate Parliament has shown little desire to engage in these issues. The three private members bills that have attempted to address the broad issues raised by Ms Seales’ proceeding gained little legislative traction. However, the fact that Parliament has not been willing to address the issues raised by Ms Seales’ proceeding does not provide me with a licence to depart from the constitutional role of Judges in New Zealand.”[20]

Parliament

While the courts preserved the status quo, this sparked a discussion on the legalisation of euthanasia. MPs from all sides expressed different and justified opinions.

For

Chris Bishop, one of the only six National MPs who spoke at the bill’s first reading, said that this bill presented a once-in-a-generation opportunity to “create a more compassionate society”. Legalising euthanasia, according to Bishop, is a moral thing to do because it “upholds human dignity—the ability to end your life at a time and manner of your choosing, rather than in cruel and intolerable conditions. It recognises and affirms human agency and autonomy”. Bishop also stated that the current system is “inadequate” arguing that people are already taking their own lives prematurely and doctors are already assisting with this.[21]Julie Ann Genter, a Green MP, also supported the bill, saying that this bill was “compelling…that this isn’t about suicide. It’s about what what happens when somebody is already very close to death”. However, she did also state that she was only supporting this bill in the first reading because she wanted it to go to the select committee, where the public can have a say. Genter also noted that she wanted the bill amended to ensure there was no risk of abuse for elderly, disabled or other vulnerable people.[22] NZ First MP Tracy Martin also supported the bill on the proviso that a nationwide referendum be made on the issue, stating that “this issue should go to them, this is too big an issue for this House to decide."[23]

Against

Former Prime Minister Bill English has been outspoken against the Bill, stating that it lacked the necessary safeguards and that it will lead to a slippery slope where “a depressed disabled young person to think that their life isn't worth anything”.[24] O’Connor, a National MP, stated that the terms such as “intolerable” in the bill are subjective and will be open to wide interpretation, and that the matter will place too much pressure on the courts and Parliament. O’Connor stresses the irreversibility of assisted suicide, stating that if a doctor “get[s] it wrong, the person's still dead”.[25]Nuk Karoko, from National, said euthanasia “was foreign to Maori”. Stating that “death has never been a final ending for our people but the beginning of a journey”. Euthanasia would alter the process of death, leaving the loved one in “limbo”.[26]  Maggie Barry, a National MP, also opposed the bill, stating as a former minister for senior citizens, that it will increase the chance of elder abuse as it is, further stating that it is “it is poorly crafted and drafted…fatally flawed and could not even be fully rewritten to prevent vulnerable people being predated upon.”[27]Public For Most surveys show that a third of New Zealanders support assisted dying. Jack Havill, past president of the End-of-Life Choice Society of New Zealand, said that the safeguards in the bill were comprehensive and that this bill will protect the dignity and autonomy of the people dying. Havill argued that the bill will allow terminally-ill patients to die in the company of friends and family and that this is a good thing as it will allow goodbyes and limit mutual distress.[28]Andrea Lane highlighted the importance of keeping a person’s dignity intact, stating that “it is barbaric to leave them [a terminally-ill patient] with the choice between a potentially long and undignified exit from this world or violent options to take their own life.” Lane also said that the safeguards were robust “without making the hurdles too high for the bill to be a realistic option for our terminally or irremediably ill.” Furthermore, the requirements for the reporting on assisted dying were “clear and transparent” and because two doctors would be required to submit a report it will ensure that there is no “abuse of the system”.[29]AgainstEuthanasia Free NZ state that legalising assisted suicide will trivialise death, stating that it will not just affect the terminal ill but all of society. If euthanasia became an option, “staying alive” would be an option too. They also stressed that the mere existence of euthanasia as option will put pressure because if people do not choose it, “they would effectively be a financial burden on society”, highlighting that there were “would be subtle pressure on elderly, disabled and ill people to ‘do the right thing’”.[30]Say No to Assisted Suicide also argued that the safeguards in the bill will be unenforceable in practice. As the bill is based on self-reporting - meaning it is up to the person to report whether they followed all the requirements - it would be difficult to ascertain whether the consent given by the patient has not been coerced.[31]

Euthanasia in Oregon

Seymour states that Oregon’s law on assisted dying is “the best template for assisted dying legislation in this country”.[32] In 1994, Oregon became the first U.S. state to legalise assisted dying through the Death with Dignity Act. if patients meet the criteria for assisted dying, the doctor will give them the prescribed medication which the patient has to take themselves.An independent study found that the legalising of assisted dying in Oregon led to no “no evidence of heightened risk for the elderly, women, the uninsured, people with low educational status, the poor, the physically disabled or chronically ill, minors, people with psychiatric illnesses including depression, or racial or ethnic minorities, compared with background populations.”[33]Seymour states that New Zealand should follow the tighter Oregon euthanasia laws rather than the more liberal interpretation of some European nations, specifically stating that “We've got a lot more in common with Oregonians – culturally, legally, politically.”[34]

Euthanasia in Switzerland

Assisted dying is legal in Switzerland. Lethal prescription drugs can be given but the patient has to take the active role in their own euthanasia.[35] Under this system, non-profit organisations were established to help patients get the drugs. As euthanasia is not restricted to Swiss residents, people from around the world have travelled to Switzerland to end their lives. Known as suicide tourism, 742 people have died this way in 2014.[36] According to Seymour, this type of euthanasia does not really align with New Zealand’s history or culture, and there will be no plans to ‘liberalise’ and ‘expand’ assisted dying to the extent seen in European countries such as Switzerland.[37]

What happens now

After the bill passed its first reading, the Select Committee received a record 35,000 submissions. This surpassed the 22,000 submissions on the legalisation of same-sex marriage in 2012.[38]While public submissions have closed, the debate continues. Factors of choice and the sanctity of life are being balanced. There are also discussions of putting the issue to a referendum. But whatever the outcome is, different stories about life, death and illness have been aired. As a society, this is something we should be proud of.

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[1] “The Voluntary Euthanasia Issue” Dignity New Zealand <dignitynz.co.nz>

[2] Dignity New Zealand, above n 1.

[3] Sarah Young “Street in fresh bid for right-to-die law” (10 March 2012) Stuff <stuff.co.nz>

[4] Hamish Rutherford “Voluntary euthanasia bill withdrawn” (26 September 2013) Stuff <stuff.co.nz>

[5] Tracy Watkins “Historic right to die bill passes first hurdle” (14 December 2017) Stuff <stuff.co.nz>

[6] “Most support voluntary euthanasia: survey” (3 October 2008) Otago Daily Times <odt.co.nz>

[7] “75% support medical assistance to die” (18 June 2017) Horizon New Zealand <horizonpoll.co.nz>

[8] End of Life Choice Bill 2017 (269-1) (explanatory note).

[9] Section 4.

[10] Section 8.

[11] Section 10.

[12] Section 12.

[13] Section 15.

[14] End of Life Choice Bill, above n 8, at s 17.

[15]Seales v Attorney-General [2015] NZHC 1239.

[16] At [8].

[17] At [11].

[18]Carter v Canada (Attorney-General) [2015] SCC 5.

[19]Seales, above n 15, at [210].

[20]Seales, above n 15 at [211].

[21] Chris Bishop MP (14 Dec 2017) 269 NZPD 1.

[22] Julie Ann Genter MP (14 Dec 2017) 269 NZPD 1.

[23] Tracy Martin MP (14 Dec 2017) 269 NZPD 1.

[24] Bill Englsh MP (14 Dec 2017) 269 NZPD 1.

[25] Simon O’Connor MP (14 Dec 2017) 269 NZPD 1.

[26] Nuk Karoko MP (14 Dec 2017) 269 NZPD 1.

[27] Maggie Barry MP (14 Dec 2017) 269 NZPD 1.

[28] Jack Havill “Why we support End-of-Life Choice” End-of-Life Choice Society of New Zealand Inc <www.eolc.org.nz>.

[29] Andrea Lane “Whose death is it anyway? Why I support the euthanasia debate” (15 June 2017) Stuff <stuff.co.nz>.

[30] “A law change would affect everyone” Euthanasia-Free NZ <euthanasiadebate.org.nz>.

[31] “Safeguards are unenforceable because they are based on self-reporting” Say No to Assisted Suicide <notoassistedsuicide.nz>.

[32] Rob Mitchell “Euthanasia: What’s done around the world” (4 March 2018) Stuff <stuff.co.nz>.

[33] Margaret P Battin and others “Legal physician‐assisted dying in Oregon and the Netherlands: evidence concerning the impact on patients in “vulnerable” groups” (2007) 33 J Med Ethics 591.

[34] Mitchell, above n 32.

[35] George Mills “What you need to know about assisted suicide in Switzerland” (3 May 2018) The Local <thelocal.ch>.

[36] Mitchell, above n 32.

[37] Mitchell, above n 32.

[38] Henry Cooke “Euthanasia bill timetable extended as record 35,000 submissions received” (21 May 2018) Stuff <stuff.co.nz>.