The End of Life Choice Referendum 2020

Em Webley and Laura Jackson. Edited by Billie Haddleton.

The End of Life Choice Bill was introduced by David Seymour in 2015. It is an Act focused on the option for individuals faced with a terminal illness to make a choice as to whether they want to continue their life. This Act is centered around Western and individualistic concepts and may not consider other cultures’ views around end of life and dying. 

There is a lot of misinformation surrounding this important decision, so we have answered some of your potential questions. These responses relate to the proposed legislation. We recommend doing personal research beyond this to understand the wider discussion on this referendum.

Overview

Is this an Act or a Bill?

This is an Act that passed in the house in November. However, due to the referendum, the Act has not yet come into force and will only do so upon a majority vote in the referendum of the 17th of October 2020 election.  

What is the purpose of the Act? 

The Act aims to give individuals with terminal illnesses the option to lawfully request medical assistance in order to end their lives. The Act creates a legal pathway for this to be done. [1]

What are New Zealand’s current laws? 

Assisted dying and euthanasia are currently illegal in New Zealand.[2] This Act will repeal any enactments that make it illegal to assist euthanasia in New Zealand. 

Referendum

The 2020 End of Life Choice referendum asks voters to answer the following question - “Do you support the End of Life Choice Act 2019 coming into force?” Voters then select either “Yes - I support the End of LiIfe Choice Act 2019 coming into force” or “No - I do not support the End of LiIfe Choice Act 2019 coming into force”.[3]

If the majority of voters ‘vote ‘yes’ on this referendum, then this Act will be made into law. The legislation will come into effect 12 months after the date on which the official result of the referendum is declared.[4]

If the majority vote against the legislation, then the Act will not come into force following this referendum. The legislation states that if the Act does not come into force within 5 years after the date which it received Royal Assent, being 16 November 2019, then it will be repealed.[5]

What do these terms mean? 

• Assisted dying - a person’s doctor or nurse practitioner giving them medication to relieve their suffering by bringing on death; or the taking of medication by the person to relieve their suffering by bringing on death.[6]

• Medication - a lethal dose of medication used for assisted dying.[7]

• In other jurisdictions, terms such as ‘euthanasia’, ‘assisted suicide’ and ‘voluntary assisted dying’ are used when discussing this issue. 

Assisted suicide vs euthanasia vs assisted dying 

Euthanasia is commonly understood to be the act of intentionally ending a life to relieve suffering. This is most commonly used in practice by a doctor administering medication which ends someone’s life. 

Assisted suicide is to intentionally help someone to commit suicide. An example of this in practice includes providing them with a lethal amount of medication.

Although similar to assisted suicide, assisted dying applies specifically to assisting a terminally ill patient end their life. 

Māturanga Māori

It is necessary to understand that death is not necessarily just about the individual when it comes to end of life choice.

Whānau, hapū and iwi are important stakeholders in Māori perspectives on death as death is not just experienced by the individual in mātauranga Māori.

Eligibility 

Who is eligible for assisted dying? 

There are six criteria for someone to be eligible. All of these criteria must be met in order for someone to be eligible. These are:[8]

1. Aged 18 or over;

2. A New Zealand citizen or resident;

3. Suffering from a terminal illness likely to end the person's life within 6 months; 

4. In an advanced state of irreversible decline in physical capacity;

5. Experiences unbearable suffering that cannot be relieved in a manner that the person considers tolerable; and

6. Is competent to make an informed decision about assisted dying.

Who is not eligible?

Only individuals who have a terminal illness are eligible. This means that while some will suffer from debilitating chronic illnesses, unless it is likely to end their life within 3 to 6 months, they will not be eligible. 

A person who is suffering from any form of mental disorder or mental illness, has a disability of any kind or is of advanced age is not eligible for assisted dying on that condition alone.[9] 

If I suffer from both a terminal illness and a mental illness, such as depression, will I be eligible? 

Yes, the Act allows for individuals who suffer from both a terminal and mental illness to be eligible for assisted dying. However, the mental illness may prevent the individual from making an informed and competent decision, so a doctor may decide they are not eligible.[10] 

What about people with disabilities? 

A person will not be eligible for reason only that they have a disability. This means that if a person has a disability of any kind, be it visual, physical or mental, they will not be eligible unless it will end their life within 6-12 months.[11]

Process

How does it actually work? 

The process for assisted dying is lengthy and involved consideration by health practitioners and registrars. Below is a simplified process for assisted dying:

1. The patient must fall under the definition of section 5 to be eligible.

2. The request for assisted dying must come from the patient to a health practitioner.

3. The health practitioner will advise them on:

   1. The prognosis of their illness;

   2. The irreversible nature of assisted dying;

   3. And the anticipated impacts from assisted dying.

4. The health practitioner will also:

   1. Ensure the patient knows of other end of life care options;

   2. Encourage discussion with family, friends and counsellors;

   3. Ensure they know there is no obligation to discuss with anyone;

   4. Give them time to discuss with anyone they wish;

   5. Do their best to ensure that they are free from pressure.

5. The request will be confirmed by the patient and health practitioner by signing and dating a form.

6. The first medical practitioner will give their opinion on eligibility.

7. The second independent medical practitioner will also reach their own opinion on eligibility.

8. If competence is not established by one or both of the medical practitionerspractitioners, then a third opinion will be given by a psychiatrist.

9. The patient will then choose a date and time for the administration of medication.

10. Before the date chosen, the health practitioner will discuss options for assisted dying and ask the patient to choose one, these are:

    1. Ingestion, by the patient;

    2. Intravenous, by the patient;

    3. Ingestion through a tube, by a health practitioner; or

    4. Injection, by a health practitioner.

11. At the chosen date and time, the medication will be delivered by the chosen method.

12. The death must be reported and sent to the review committee.

A registrar will check that the due process has been complied with.

For further information on the process for assisted dying, please see sections 8-24: http://www.legislation.govt.nz/act/public/2019/0067/latest/DLM7285905.html

Do doctors have to assist anyone who asks for assisted dying? 

No. Section 8 of the Act provides for conscientious objectives for health practitioners. This means that if a health practitioner objects to assisted dyingdying, they do not legally have to provide it.[12]

What happens if someone is a conscientious objector? 

If a health practitioner objects to assisted dying upon requestrequest, they must inform the person of the objection and then tell them of their right to find another health practitioner.[13]

Does this mean that doctors will be offering assisted dying to the terminally ill?

No. Under section 10 of the Act, a health practitioner is not allowed to suggest the option of assisted dying. The option of assisted dying must exclusively be requested by the patient. Upon request health practitioners are allowed to discuss and provide information about assisted dying. [14]

Is there a waiting or cooling off period? 

No, the Act does not provide for a cooling off period. 

A waiting or cooling off period is where the legislation requires a set period of time to be taken between a patient requesting that they are able to undergo the assisted dying process, and the process actually beginning, for example, a six week delay before the process can begin. 

As this Act does not include this period, a request can be made at any point and may take as little as four days to be completed. 

 Can life support be turned off under this Act?

No. The Act only provides for direct instruction from the individual to receive assisted dying. Anyone who is on life support cannot request this so will not be affected. 

Accountability

Who has accountability? 

As part of the Act, the Director-General will establish the Support and Consultation for End of Life in NZ (SCENZ) group. Theis functions of this group include creating and maintaining a list of medical practitioners who are willing to act within this Act as replacement or independent medical practitioners. This means that they are medical practitioners who are willing to act within the allowance of the End of Life Choice Act in place of conscientious objectors. This group also extends to including psychiatrists who are willing to assist with the process.[15] 

Can family be consulted? 

Patient confidentiality is an important part of New Zealand law and ethics and a health practitioner cannot discuss any information with a family member or caregiver unless there is express permission given by the patient. Therefore, it is possible that family members will not be consulted on an individual's assisted dying. 

How will vulnerable individuals be protected from coercion? 

Under the Act there are a few provisions that aim to protect patients from coercion or pressure when making a decision. Firstly, it is the individual's own choice to ask for the option to end their own life.[16] Family members, advance directives, guardians or doctors cannot request assistant dying or euthanasia for the patient.[17] Secondly, at least two and up to three doctors must give an opinion on the request for end of life.[18] This will protect vulnerable individuals from abuses of power. Thirdly, the Act prevents any further action from being taken if a medical practitioner suspects that there is pressure on the patient. If anyone is suspected to have compelled the patient to request the end of their life then all proceedings must be promptly stopped.[19] Finally, welfare guardians do not have the capacity to request assisted dying under this Act for someone for whom they have been appointed to act as a welfare guardian. [20]

International Legislation

Switzerland [21]

Assisted dying is not explicitly legal in Switzerland. Rather, it is possible through omission in legislation. 

Article 114 of the Swiss Penal Code prohibits causing death for commendable motives, notably out of compassion for the victim. Article 115 prohibits assisted dying for “self-serving reasons”. Therefore, whilst assisted dying is not explicitly legal, it is possible due to omissions in the legislation between these two restrictions.[22]

Following these omissions, the Swiss Supreme Court has ruled that people must perform assisted dying by their own hand. Whilst medical professionals can assist in the process, the individual must administer the medication themselves, otherwise the medical professional would be liable for criminal prosecution. 

Australia

The state of Victoria has legalised “voluntary assisted dying”, following the Voluntary Assisted Dying Act 2017 which came into force in June 2019. Victoria is the first Australian state to legalise assisted dying. The legislation allows voluntary assisted dying for those who are experiencing “incurable, advanced and progressive disease, illness or medical condition, who are experiencing intolerable suffering”. There are safeguards in place including the requirement that the condition be assessed by two medical practitioners who expect that death will occur in the next six months. [23]

The Northern Territories introduced assisted dying legislation in 1995, but this was repealed in 1997. 

England

Euthanasia is illegal in England and is deemed to be manslaughter or murder. However, the Supreme Court has taken steps to make different methods of assisted dying more accessible. In 2018, the Supreme Court ruled that doctors would no longer require legal approval to withdraw treatment, food and water from a patient in a vegetative state, where there is permission from the family.[24]

Canada

Following the Supreme Court ruling in Carter v Canada, the Canadian Court declared that parts of the criminal code would need to be changed to be consistent with the Canadian Charter of Rights and Freedoms, including the sections prohibiting medical assistance in dying.[25] In June 2016, the Parliament of Canada introduced legislation which allows someone to request medical assistance in dying. 

To avoid criminal prosecution, limited groups of people are able to assist in the process. These include physicians and nurse practitioners, pharmacists, family members (where requested) and health care providers.[26]

United States of America 

Euthanasia or assisted dying is illegal in most states in the United States. Assisted dying has been legalised in Washington, California, Colorado, Oregon, Vermont, Maine, New Jersey, Hawai’i and Washington. There is still uncertainty in Montana whether it is legal, as a Supreme Court of Montana ruling says that nothing in precedent or statute indicates that it is against public policy. However, there is no explicit legislation enabling it. 

Conclusion

We hope that the answers to some of these questions will give you an informed view of what the End of Life Choice Act will mean for New Zealanders. No matter what your decision is on the referendum, it is important to understand what you are voting for. 

Voting begins on the 3rd of October and goes till the 17th. To get more information about voting and the referendums, head to https://vote.nz/ and https://www.referendums.govt.nz/.

[1] End of Life Choice Act 2019, section 3.

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

[3] End of Life Choice Act 2019, section 2(2) and (3).

[4] End of Life Choice Act 2019, section 2(1).

[5] End of Life Choice Act 2019, section 2(5).

[6] End of Life Choice Act 2019, section 4.

[7] End of Life Choice Act 2019, section 4.

[8] End of Life Choice Act 2019, section 5(1).

[9] End of Life Choice Act 2019, section 5(2).

[10] End of Life Choice Act 2019, sections 5 and 6.

[11] End of Life Choice Act 2019, section 5(2)(b).

[12] End of Life Choice Act 2019, sections 4 and 8.

[13] End of Life Choice Act 2019, section 9.

[14] End of Life Choice Act 2019, section 10.

[15] End of Life Choice Act 2019, sections 4 and 25.

[16] End of Life Choice Act 2019, section 11.

[17] End of Life Choice Act 2019, section 10.

[18] End of Life Choice Act 2019, section 12.

[19] End of Life Choice Act 2019, section 24.

[20] End of Life Choice Act 2019, section 34.

[21] The Local (3 May 2018) “What you need to know about assisted death in Switzerland <www.thelocal.ch>.

[22] The Federal Council portal of Swiss Government (n.d.) “CC 311.0 Swiss Criminal Code of 21 December 1937” <https://www.admin.ch/opc/en/classified-compilation/19370083/index.html#a114>.

[23] Victoria State Government (n.d.) “Voluntary Assisted Dying” <www2.health.vic.gov.au/hospitals-and-health-services/patient-care/end-of-life-care/voluntary-assisted-dying>.

[24] NHS Trust v Y [2018] UKSC 46.

[25] Carter v Canada (Attorney General) [2015] 1 SCR 331.

[26] Government of Canada (n.d.) “Medical Assistance in Dying” <www.canada.ca/en/health-canada/services/medical-assistance-dying.html>.