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Committee unable to agree on End of Life Choice Bill

18 April 2019 - By Tracey Cormack

Parliament's Justice Committee has released its report on the End of Life Choice Bill, but members were unable to agree that it should be passed.

The bill was introduced by ACT MP David Seymour on 8 June 2017. It gives people with a terminal illness or a grievous and irremediable medical condition the option of requesting assisted dying. The bill is expected to result in conscience votes by members in House.

Eight members of the Committee hold diverse views.

Descriptions of the bill

The first part of the report describes the bill.

Eligibility criteria

A person would be over 18 years of age, a New Zealand citizen, be suffering from an advanced terminal illness, be experiencing unbearable suffering and be able to understand the nature and consequences of assisted dying.

Process for assisted dying

Part 2 outlines what would happen if a person asked for assisted dying.

Administrative bodies created

The bill would create three administrative bodies: A Support and Consultation for End of Life in New Zealand (SCENZ) Group, a registrar (assisted dying), and an end of life review committee.

Attorney-General’s report under the New Zealand Bill of Rights Act (BORA)

The Attorney-General concluded that the bill is inconsistent with s19 of the BORA which could be resolved by either reducing the age of eligibility to 16 or removing the age criterion altogether.

Amendments to the bill: Recommendations should the bill be passed

The Committee report describes minor and technical changes that they would recommend if the bill were to be passed, such as the commencement date (from 6 to 12 months after Royal Assent), definition of “assisted dying” to include self-administration of medication and aligning the bill with other legislation. Other recommendations would be clarifying clause 6(1) – Conscientious objections, and amending clauses relating to the process for assisted dying - 8(2)(b) (communication with doctor) and 8(2)(h) (coercion).

The headings to clauses 15 and 16 would be changed to clarify the reference to lethal doses of medication. Clause 18 for unused medication is too prescriptive and the Committee recommends removing subclauses (4) and (5).

The role of the Review committee (clause 20) is unclear as is the registrar’s role (clause 21) and these should be amended.

Clause 25 – the effect of death on contracts should be clearer and more specific.

The civil immunity provision in clause 26 of the bill as introduced should exclude complaints to the Health and Disability Commissioner and complaints under the Health Practitioners Competence Assurance Act and the Committee recommends inserting new clause 26A to set out the proposed limitations on civil immunity.

Defences under the Crimes Act 1961 should not be used to avoid prosecution for using force against doctors or others supporting a person with assisted dying.

The Committee recommends that assisted deaths should not be referred to the coroner as a matter of course.

Submissions on the bill

The report summarises the submissions received on the bill (39,159) including health professionals’ groups, hospices, disabled people and faith-based submitters. About 36,700 of the written submissions contained a discernable view. About 90% of submitters opposed the bill with about 8.5% supporting it.

The report discusses the common beliefs expressed about assisted dying. Many views about were motivated by beliefs about maintaining life, autonomy, dignity and compassion.

Attitudes towards the current framework are discussed either that it is sufficient or inadequate. Most consider that the bill is not needed because the existing medical and legal framework is working well, while the supporters of the bill believe that people are suffering under the existing framework and that current pain relief is inadequate.

Attitudes towards the state allowing assisted dying – many opponents consider that allowing euthanasia is against the purpose and role of the state.

Many submitters argue that legislation should reflect the opinion of the majority.

Some supporters of the bill view assisted dying as a natural step towards New Zealand becoming a more modern and liberal state.

Palliative care

Many opponents of the bill consider that euthanasia and assisted suicide are unnecessary because palliative and hospice care is available for people at the end of their lives, however some expressed concern that access to palliative care and hospice services is inequitable across the country.

Suicide

A major concern for some opponents of the bill is that legalising assisted dying validates suicide and that the bill will negatively affect the suicide rates for Māori and Pasifika.

Cultural considerations

Many submitters are concerned that the bill is based on a Western philosophy of valuing individual autonomy and dismissive of other cultures and their values. Others who identified as Māori opposed the bill or consided it inconsistent with Māori tikanga (values). Submitters described a Māori worldview where people are part of their whānau, hapū, and iwi, where care, respect, and reverence are shown for the elderly and terminally ill, and life and wairua (spirituality) are valued. Some believed that assisted dying would breach the tapu (sacredness) of the person and have spiritual consequences for those involved. Some submitters considered that the bill would breach the Treaty of Waitangi.

Eligibility criteria

Clause 4 describes the six criteria a person would have to meet to be eligible for assisted dying. Many opponents of the bill consider the criteria too wide and vague, while supporters believe they are adequate.

Condition of a person wishing to access assisted dying

Many submitters considered that the terms used in clauses 4(c) to 4(e) are vague, subjective and open to interpretation.

Some submitters consider that the term “grievous and irremediable” is a low threshold to meet are particularly concerned about what conditions might be considered grievous and irremediable under the bill. Many opponents of the bill are concerned that people who suffer from mental illness would be eligible to access assisted dying.

Many submitters are concerned that, if the bill were passed, the eligibility criteria would later be expanded to include people not eligible under the current bill.

Competence

Clause 4(f) of the bill would require a person to be able to understand the nature of assisted dying and the consequences for them of assisted dying. Submitters, including doctors, note that determining whether a person is competent is complex, challenging, and subject to error, and no absolute test for capacity is available.

Role of Practitioners in assisted dying

Most submitters believe that a medical practitioner (doctor) would perform the role of attending medical practitioner as defined in clause 3. However, some submitters claim that nurses could be the medical practitioner or assist in a person’s death, regardless of what is stated in the bill. Many opponents of the bill are concerned at the prospect of doctors being involved in assisted dying. Others consider that the bill is medically unethical and incompatible with the Hippocratic Oath and the commitment to do no harm.

Conscientious objection

Clauses 6 and 7 of the bill set out the mechanism that would allow a conscientious objection to be exercised. Some submitters consider that those clauses do not provide for true conscientious objections because a medical practitioner would still be required to participate in the person’s death.

There were numerous concerns around conscientious objection including that the scope of the objection is too narrow, that clause 6(1) allowing a ‘person’ to object is too broad and that medical practitioners should be assured that they can object at any stage of the process.  

Concerns that assisted dying might become commercialised

Some consider that the bill would allow pharmaceutical companies or medical professionals to make money, which could act as a disincentive to preventing unnecessary deaths.

Coercion

Some submitters are concerned that consent might be coerced for financial reasons. There are concerns that people would not be able to change their minds once initial consent had been given.

Safeguards

Some opponents are concerned that New Zealand could become more tolerant of assisted suicide and euthanasia over time.

Clause 8(2)(a) to (h) of the bill specifies the information that an attending medical practitioner would have to provide to a person who requested assisted dying, however many submitters consider the safeguards in this clause inadequate.

Confirming the request

Under clause 9, the attending medical practitioner would have to give a prescribed form to a patient wishing to proceed with assisted dying. Some submitters support having the request confirmed in writing, others believe that the process could be easily abused.

Medical opinions

Clauses 10 and 11 set out the two opinions that would have to be reached by the attending and independent medical practitioners. However, many other submitters consider the safeguards inadequate.

Effects on family and friends

Supporters of the bill also consider that assisted dying helps family and friends grieve and feel a sense of closure and allows them to be involved at the time of death, while opponents view the end of life as a valuable time for friends and family to spend with the person.

Process for assisted dying

Clauses 8 to 18 of the bill set out the process that medical practitioners would need to follow to give effect to a request for assisted dying. On the timeframes some suggested that the bill should specify that the process would be paused when a patient decided to stop at any time.

Requesting assisted dying

Under clause 8, the person wishing to have the option of assisted dying would have to tell their attending medical practitioner of that wish. Some consider the bill is unclear about whether a medical practitioner could initiate a discussion about assisted dying.

Administrative bodies

Clauses 19, 20 and 21 establish three administrative bodies, the Support and Consultation for End of Life in New Zealand (SCENZ) Group, the review committee, and the registrar (assisted dying). While some support oversight groups, others are concerned that the checks and audits would only happen after a person had been assisted to die.

Membership of groups

Clause 19(1) of the bill would require the Director-General of Health to appoint the number of medical practitioners to the SCENZ Group that he or she considered appropriate. Some argue that the number and composition of the group should be specified in the bill. Others were concerned that people who agree to be on the group will be biased in favour of assisted dying.

Powers and functions of administrative bodies

There was concern that the bill lacks detail about how the bodies would operate and some thought that the administrative bodies would need more power.

Effects of Death

Clause 25 of the bill specifies that a person who died as a result of assisted dying would be taken for all purposes to have died as if assisted dying had not been provided. Most submitters who commented on clause 25 strongly disagree with it being included. They consider that it is against principles of honesty, openness, and transparency and that its purpose is to hide the fact that a person was euthanised or assisted to commit suicide.

Death certificate

Death certificate submitters commented on how clause 25 would interact with clause 28, which would amend the information that must be recorded on a death certificate. The underlying medical condition as well as the fact that the person died as a result of assisted dying would have to be recorded on the death certificate.

Immunity in civil or criminal

Under clause 26, a person would be immune from liability in civil or criminal proceedings for acts or omissions in good faith and without negligence in providing or intending to provide assisted dying.

Some submitters are concerned that immunity from civil proceedings would override existing complaints and discipline regimes under the Code of Health and Disability Services Consumers’ Rights and the Health Practitioners Competence Assurance Act 2003. Others do not believe that the clause would override existing complaints and discipline regimes. Some argued that these regimes should be excluded from the bill so that they could not be used by relatives who were upset that their loved one had requested assisted dying and who wanted to criticise the medical practitioner involved.

Submitters expressed concern that clause 26 lacks clarity and it was also suggested that, rather than providing immunity, the bill would be clearer if it were to decriminalise assisted dying.

Offences provisions

Clause 27 of the bill would create three offences:

*             willfully failing to comply with a requirement in the legislation

*             completing or partially completing a prescribed form for a person without their consent

*             altering or destroying a completed or partially completed prescribed form without the consent of the person who completed or partially completed it.

Many submitters believe that the penalties for wrongful death in the bill are limited to those contained in clause 27. Submitters compared the penalties in the bill with the penalties in the Crimes Act for murder, manslaughter, and aiding and abetting suicide. They noted that the penalties proposed in the bill are far lower than the Crimes Act provisions.

Many were concerned about how offences would be investigated, for example if would be difficult to prosecute a person for destroying or altering a document when the main witness would be dead.

Reporting cause of death

Clause 28 relates to the information that would go on a death certificate of a person who died as a result of assisted dying. Some are concerned that clause 28 could result in biased records about outcomes from conditions.

The death certificate would have to include the fact that the person died as a result of assisted dying. It would also have to include the person’s underlying condition as if assisted dying had not been provided. Submitters who commented on clause 28 believe that it would entail death certificates being falsified and medical practitioners being asked to be dishonest.

Overseas Jurisdictions

The report then summarises the law in overseas jurisdictions.

Switzerland: I940s the Swiss Criminal Code allows for assisted or accompanied suicide (not euthanasia).

USA: 1998 The Oregon Death with Dignity Act 1997 allows terminally ill Oregon residents to end their lives through self-administration of lethal medications. Washington, Vermont, California, Colorado, District of Columbia, and Hawaii also allow patient-assisted suicide.

Belgium: The Belgian Act on Euthanasia (2002) was amended in 2014 to include terminally ill children.

Netherlands: The Dutch law on assisted dying came into force in 2002.

Canada: Canada has a federal law amending the criminal code and Quebec has a provincial Act Respecting End-Of-Life Care which came into effect in 2017.

Victoria, Australia: Victoria’s Voluntary Assisted Dying Act 2017 is due to come into force on 19 June 2019.

Last updated on the 16th September 2019