Following last year’s referendum, terminally ill New Zealanders now have the right to end their own lives – but only under strict conditions. Lawyer Holly Hedley of Buddle Findlay explains the rules.
The End of Life Choice Act came into effect on November 7, meaning that terminally ill New Zealanders who meet the legal criteria can choose to end their lives with medical assistance.
The act has two key parts. The first is to give a person who has a terminal illness, and who meets certain other criteria, the option of lawfully requesting medical assistance to end their life. The second provides the process for medical practitioners to help people exercise that option. The legal process is detailed and it must be followed to the letter before a person can legally access assisted dying.
As with any new legislation, the real test for the act will be in its practical application. So, what are some of the practical questions you might need to know about the assisted dying process?
Who is eligible?
There are clear eligibility criteria in the act. From a medical perspective, the three key criteria are that a person must be suffering from a terminal illness, one that is likely to end their life within six months; be in an advanced state of irreversible decline in their physical capability; and, be experiencing unbearable suffering that cannot be relieved in a manner they consider tolerable.
Importantly, the person must also be competent (of sound mind) to make their own decision about assisted dying. No one else, not even a formally appointed enduring power of attorney or welfare guardian, can make that choice for them.
Contrary to some people’s concerns about the act, the services are not available to children. The person must be at least 18 years old and, in order to prevent “death tourism”, the person must also be a New Zealand citizen or permanent resident.
The role of the medical practitioner
If a person wishes to know more about assisted dying, they must start the conversation with their medical practitioner. The act in fact expressly prevents any health practitioner from initiating the conversation, so the onus is on the patient to ask first. This is unusual in health care, and it will take some getting used to, as usually practitioners would be proactive in offering up options and information.
A “medical practitioner” means any properly registered doctor, but for most people the best starting point will be their GP or specialist doctor.
Importantly though, not all doctors have to be involved with assisting a person to die. In fact, any health practitioner who has a conscientious objection can excuse themselves from being involved. However, there are requirements on all doctors who are asked about assisted dying to let the person know if they have a conscientious objection. They must also inform them about their ability to access a different practitioner through the national Support and Consultation for End of Life New Zealand (Scenz) group.
There will also be occasions where a person’s usual doctor might not have a conscientious objection, but are nonetheless not appropriately trained to provide the services. In practice, all doctors who are providing assisted dying services will need to have completed the relevant Ministry of Health training and ensure that they act within their scope of their practice and expertise. This means that some doctors may have to refer elsewhere to ensure the person receives the best and appropriate services.
What about nurses or other health professionals?
The act requires doctors to work through the assisted dying process (the phrase used in the act is “attending medical practitioner”). Other health professionals may also be involved in a supportive or information giving capacity, but the formal process must be completed by a doctor. At the end of the process a specially qualified “attending nurse practitioner” can also assist the doctor with the administration of the medication and some other steps.
What if a family member disagrees or has concerns?
The act is clear that the decision about assisted death is for the person themselves to make, and this approach fits with the general patient-doctor confidentiality and autonomy principles that exist within our current law. However, any doctor who is working through this process with a patient is required to “encourage the person to discuss their wish with others such as family, friends, and counsellors”. Furthermore, if there is any reasonable suspicion that the person is not making their own choice, the process must be stopped.
There are also statutory bodies that have been specifically designed to oversee the act and to deal with complaints. The Ministry of Health has recently published an 0800 number and email address which members of the public can contact if they have concerns about an assisted dying process. Family members can, of course, also raise concerns directly with the health team involved or with the health and disability commissioner.
What other safeguards are there?
The detailed process within the act includes inbuilt safeguards. A key one is that there must be at least two medical practitioners involved in assessing a person’s eligibility: the first being the attending medical practitioner who is approached by the patient; and then the second being an independent medical practitioner (who will be accessed through the national Scenz group). If there are any concerns about the person’s competence, then a psychiatrist must also be involved.
As explained above, the act also requires the process to be stopped if, at any point, there are reasonable grounds to suspect that the person is not making their own choice (eg if there are concerns that the person is subject to pressure).
When and where will this all happen?
Assisted dying services are available and legal right now. The idea is that most assisted dying services will be provided within the community, usually in a person’s own home if possible. Hospitals are not going to be the best place to have these conversations and provide these services, but they will be there if need be.
Will we read about cases of assisted death in the news?
There are publication restrictions in section 36 of the act, which mean that specific details about a person’s assisted death cannot be published (including details about the method by which medication was administered, place where it occurred and the name of the person who administered the medication or their employer). Family and/or loved ones can of course still talk about the death in a general way. However, publication of those particular details is not allowed.
End of Life Choice Act and life insurance
A lot of questions have been raised about what the act might mean for life insurance. This is because life insurance policies can sometimes have exclusions if a person dies through suicide or other intentional self-injury. The act addresses these concerns. It provides that a person who dies through assisted dying is – for the purposes of any life insurance contract – taken to have died from the terminal illness suffered, eg as if assisted dying had not been provided.
Looking ahead, special attention needs to be given to ensuring fair and equal access. This is an issue that New Zealand’s health and disability sector has been grappling with for some time, particularly given the challenges faced in more rural areas and within a stretched workforce.
The Ministry of Health Manatū Hauora is constantly updating its information about assisted dying services, and it has published plenty of guidance for the public and practitioners alike. If you or a loved one are considering assisted dying services, then you can review this information and then begin the conversation with a doctor you trust.
This article is intended as general information only and is not legal advice.