The End of Live Choice Act 2019 came into effect in November 2021 (“the Act”). It establishes the framework for the process, the eligibility and safeguards for the service of assisted dying in New Zealand and is one of the most significant health issues to be enacted in New Zealand in recent decades. It is overseen by the Ministry of Health Manatu Hauroa.
The Act is based upon several core principles.
Section 5 of the Act sets out the essential criteria to be eligible to receive assisted dying. The patient seeking assisted dying must:
be at least 18 years of age,
be a NZ citizen or a permanent resident,
suffer from a terminal illness that is likely to end their life within six months,
be in an advanced state of irreversible decline in physical capability,
be experiencing unbearable suffering that cannot be relieved in a manner that the person considers tolerable, and
be competent to make an informed decision about assisted dying.
While the first two criteria are easily verified, the other eligibility criteria are less than straight forward and may require expert evaluation. This is because the lawfulness of implementing assisted dying will depend on whether ALL the eligibility criteria have been met. If not, the person assisting could potentially be exposed to the consequences normally dictated by the Crimes Act, such as liability for murder or manslaughter.
The criteria of “experiencing unbearable suffering” could vary from one patient to the next, therefore it is an implicit requirement for the doctor to obtain as much information as possible from the patient. If it turns out that suffering can be relieved in a way that is tolerable to the patient the “unbearable suffering” criteria will not be met and the patient will not be eligible for assisted dying.
Section 8 and 9 of the Act explains that a health practitioner is not under any obligation to assist any person who wishes to exercise the option of receiving assisted dying under the Act if the health practitioner has a conscientious objection to providing that assistance to the patient.
Section 5(2) of the act provides a degree of clarification of eligibility by providing that a person is not a person who is eligible for assisted dying or an eligible person by reason only that the person:
is suffering from any form of mental disorder or mental illness,
has a disability of any kind; or
is of advanced age.
Section 6 lays out the meaning of competent to make an informed decision about assisted dying. Ascertaining the required level of competence in any patient may be difficult but the Act provides a process for obtaining expert psychiatric advice when the patient’s competence is in doubt.
It is important to point out that under section 11 of the Act, only a patient can initiate a request of assisted dying via their attending medical practitioner. Section 10 of the Act is very clear that a health practitioner cannot initiate this process on behalf of their patient. Section 33 and s.34 provides that advanced directives and welfare guardians have no weight under this Act. Section 11 provides the process that the attending medical practitioner must follow on the patient exercising this option. The steps provided for in s.11 are required to be taken before any assessment has been made of the patient’s eligibility to receive assisted dying, as per s.5 mentioned above.
Section 12 and s.13 of the Act provides for the process that must be taken by the health practitioner and medical practitioner following completion of the steps in s.11.
Section 14 applies if the medical practitioner has reached the opinion that either: the person requesting the option of receiving assisted dying is eligible; or the person requesting the option of receiving assisted dying would be a person who is eligible for assisted dying if it were established under s.15 that the person was competent to make an informed decision about assisted dying. Section 15 provides for a third opinion to be given by a psychiatrist if competence is not established to satisfaction of one or both medical practitioners under s.13 or s.14.
Section 24 allows for no further action to be taken if coercion or pressure from another person is suspected by the attending medical practitioner or attending nurse practitioner.
Section 36 provides for the restrictions on what information can be made public in respect of any death as a result of assisted dying under the Act.
It is important to know that a person/patient can change their mind at any time during the process.
While the legislation is as robust as possible following reviews of other international models, it will
take time for the legislation to establish itself and time will tell if all the appropriate safeguards have been put in place.