By Oliver Fredrickson

New Zealand will vote on the End of Life Choice Act 2019 at this year’s general election. The Act received its Royal Assent in December 2019 but will only come into force if a majority of electors vote “yes” to the simple question: do you support the End of Life Choice Act 2019 coming into force?

The Act’s purpose is to give people with a terminal illness and who meet certain conditions the option of lawfully requesting medical assistance to end their lives. To this end, it will create a legal process for eligible people to receive medical assistance to end their lives. This process involves the creation of three new three roles within the health system to oversee the operation of the assisted dying regime.

First, the Support and Consultation for End of Life in New Zealand (SCENZ) Group. SCENZ will make and maintain a list of health practitioners who are willing to act as independent doctors, psychiatrists, and pharmacists for individuals who want to receive medical assistance to end their lives.

Second, a Registrar will be employed by the Ministry of Health to ensure that the processes required under the Act are followed. The Registrar will also maintain a register of approved forms and reports completed as part of the process.

Third, the End-of-Life Review Committee will be appointed by the Minister of Health and include a medical ethicist, a doctor specialising in end-of-life care, and one other health practitioner. The committee will consider reports submitted about assisted deaths and inform the Registrar if any information contained within a report fails to comply with the Act.

Who is eligible?

Only eligible persons may receive medical assistance to end their lives. To be eligible for assisted dying, a person must satisfy all of the following criteria. They must:

1. be aged 18 years or over;
2. be a citizen or permanent resident of New Zealand;
3. suffer from a terminal illness that is likely to end the person’s life within six months;
4. be in an advanced state of irreversible decline in physical capability;
5. experience unbearable suffering that cannot be relieved in a manner that they consider tolerable; and
6. be competent to make an informed decision about assisted dying.

In order to be “competent to make an informed decision”, the person must be able to:

1. understand information about assisted dying;
2. retain that information to the extent necessary to make the decision;
3. use or weigh up information about assisted dying to inform their decision; and
4. communicate their decision about assisted dying in some way.

Although the Act does not define which illnesses or diseases may cause a person to be eligible for assisted dying, it does state that a person is not eligible for assisted dying by reason only that they are suffering from a mental disorder or illness, have a disability of any kind, or are of advanced age.

The assisted dying process

If an eligible person wishes to receive medical assistance to end their life, the process begins with a request from that person to their doctor. A doctor may not initiate any discussion or make any suggestion about assisted dying but may, at the person’s request, provide information about the assisted dying process.

After a person requests medical assistance to end their life, the doctor must complete a number of steps to ensure that the person’s request is made of their own free will. The doctor must:

1. inform the person about: the likely prognosis for their illness, the irreversible nature of assisted dying, and the expected impacts of assisted dying;
2. regularly talk with the person about their wish for assisted dying;
3. ensure that the person understands their other options for end-of-life care;
4. ensure that the person knows they can change their mind;
5. encourage the person to discuss their wish for assisted dying with family, friends, and counsellors, and must ensure the person has the opportunity to do so;
6. talk with other health practitioners who are in regular contact with the person; and
7. with the person’s permission, talk with members of the person’s family.

The doctor must then give the person a prescribed form confirming that these steps have been taken and that the person’s request has been made of their own free will. If, at any time, the doctor suspects a person is being pressured about their decision, they must stop the process immediately.

If the doctor concludes that the person requesting assisted dying meets the criteria provided in the Act, they must seek a second opinion from an independent doctor. The independent doctor must also agree that the person meets all the criteria.

Once both doctors have agreed that the person meets the criteria for assisted dying, the doctor who received the request must:

1. tell the person they are eligible;
2. talk with the person about the progress of their terminal illness;
3. talk with the person about the likely timing for receiving the medication;
4. ask the person to choose the date and time for administering the medication;
5. advise the person that they may change their mind at any time, or choose to receive the medication at a later date; and
6. complete a form recording the actions they have taken and send it to the Registrar.

Administering the medication

Before the date chosen by the person, the doctor must ask the person to choose one of these four methods:

• Ingestion: triggered by the person;
• Intravenous delivery: triggered by the person;
• Ingestion through a tube: triggered by the doctor or a nurse practitioner; or
• Injection: administered by the doctor or a nurse practitioner.

At least 48 hours before the designated time, the doctor or nurse practitioner must write the prescription for the person and advise the Registrar of the method and date chosen. The Registrar will then inform the doctor or nurse practitioner once satisfied that the process has been complied with.

At the designated time, the doctor or nurse practitioner must ask the person if they wish to:

1. receive the medication at the designated time;
2. receive the medication no more than six months later; or
3. stop their request to receive assisted dying.

If the person wishes to stop or delay the request, the Registrar must be advised.

If the person chooses to proceed, the doctor or nurse practitioner gives it to the person. The doctor or nurse practitioner must stay with the person until they die. A report must then be sent to the Registrar, which includes information about the person who received assisted dying and the medical staff who attended the procedure. All information about the procedure will stay confidential.

Protection for health practitioners

All health practitioners who have complied with the requirements of the Act are immune from all criminal and civil liability.

Further, a health practitioner is not under any obligation to participate in an assisted dying procedure if they have a conscientious objection.

If a person informs a health practitioner that they wish to exercise the option of receiving assisted dying, and the health practitioner has a conscientious objection, the practitioner must tell the person of their objection and inform them of their right to ask the SCENZ Group for the name and contact details of a replacement medical practitioner. ▪

Oliver Fredrickson, oliver.fredrickson@justice.co.nz, has recently completed an LLB(Hons)/BCom at Victoria University and works as a Clerk to the Chief District Court Judge Heemi Taumaunu.