Considerable commentary has been devoted to euthanasia over recent years. In fact, over the last 25 years, four separate bills have been brought to parliament to legalise euthanasia. The latest being David Seymour’s, End of Life Choice Bill, which was passed in October last year. The level of interest in the issue is testified through the 38,000 submissions given during parliament’s justice select committee process.
 
About 90% of these submissions were opposed to the proposed legislation. Numerous medical organisations have publicly opposed the bill, including Hospice NZ, the Australian and New Zealand Society for Geriatric Medicine, the Australian and New Zealand Society of Palliative Medicine, the New Zealand Medical Association, and Palliative Care Nurses New Zealand Society. The New Zealand Nurses Organisation and the Royal New Zealand College of General Practitioners have given no definitive statement due to differing opinions amongst their members. Although, the latter has stated that euthanasia must not come at the expense of palliative care which already needs more government expenditure.
 
Despite the medical fraternity’s expressed trepidation towards the Bill, recent polls have consistently found around 60 to 75% of the public support a law change. This discrepancy between professional opinion and public opinion gives cause for concern, especially since the public is unlikely to have read the proposed legislation, let alone understood its contents and how they might relate to ethics, law, and medicine. This matters because the upcoming referendum on the End of Life Choice Act 2019 is asking enrolled voters to have their say on the particular legislation, not on euthanasia in general.
 

What Does Assisted Dying Cover?

What the new legislation establishes is a legal means for the application for and administration of “assisted dying”, in two forms that are basically euthanasia (the administration of a lethal dose by a “medical practitioner or an attending nurse practitioner”) and assisted suicide (the “self-administration” of a lethal dose prescribed by a medical practitioner).  The expressed “purpose” of the law change stated in Section 2A, is “(a) to give persons who have a terminal illness and who meet certain criteria the option of lawfully requesting medical assistance to end their lives; and (b) to establish a lawful process for assisting eligible persons who exercise that option”. [1]
 

A Concern of Medical Legitimacy

While the language is clinical, concerns have been raised by Doctors Say No over the appropriation of doctors to “provide a cloak of medical legitimacy” for the “regulation or practice of assisted suicide” ("An Open Letter to New Zealanders: Doctors want no part in assisted suicide," 2020). Doctors Say No and Hospice New Zealand have both raised concerns. Firstly, because assisted dying will impinge on the doctor’s relationship with patients and their support network by diminishing trust and respect. Secondly, that there is a real risk of framing the lives of the suffering, terminally ill, and vulnerable as too burdensome to live, because of care-related, emotional, or financial demands.[2]
 

 A Concern of Coercion

Coercion is always a possibility and is not always obvious. There are fears that those lacking in familial, social, and specialised support, especially when confusion, pain, and financial strain are present, may feel compelled to take up assisted dying.
 
Positively, Section 7 of the Act, states that the “assisted dying must not be initiated by [a] health practitioner” through explicit or implicit communication, which is a useful safeguard.[3] The requirement that medical practitioners, if they have “reasonable grounds” to believe “at any time” that a patient is seeking assisted dying without being “free from pressure from any other person”, to “take no further action” offers some protection.[4]
 
However, this safeguard presumes that doctors have stronger relationships with their patients than the quality or quantity of time together often allows, thus the expectation of identifying indirect or subtle pressures on patients is unrealistic. A concern only amplified by some patients being assigned new doctors by the supervisory body, SCENZ (Support and Consultation for End of Life New Zealand) under Section 6, following their previous physician has exercised their right to “conscientious objection to providing [assisted dying]” under Section 5A.[5] This concern is not allayed by the Act’s stipulation in Section 11 that patients whose first medical practitioner have found them eligible for assisted dying, need to have a second opinion on their eligibility by an independent medical practitioner that will be assigned by SCENZ.[6]
 
This means that patients could be found to be eligible for assisted dying, based solely on their medical files and the two examinations by the medical practitioners. Thus, irrespective of the future legality of assisted dying, certain groups have good reason to question the Act’s ethicality.
 


A Concern of Scope

A further concern raised by the legislation is its scope. The Act stipulates that the eligibility criteria for assisted dying includes all of the following, they: (a) are “18 years or over”; (b) are a citizen or permanent resident of New Zealand; “(c) [suffer] from a terminal illness that is likely to end the person’s life within six months”; (d) “[are] in an advanced state of irreversible decline in physical capability”; (e) “[experience] unbearable suffering that cannot be relieved in a manner that the person considers tolerable”; and (f) “is competent to make an informed decision about assisted dying”.[7] However, the following factors are not sufficient reasons in and of themselves for assisted dying: “(a) is suffering from any form of mental disorder or mental illness, or (b) has a disability of any kind; or (c) is of advanced age.”[8] While the restrictions on eligibility are useful safeguards, they are still dissatisfactory.
 
Firstly, the vague phrasing used to assess the patient in (e) coupled with how the assessment is inherently psychological and consequently subjective, will inhibit making consistent evaluations of patients by physicians. Additionally, patients’ states of mind are changeable, creating the potential for improvements with time or with psychiatric help in cases like undiagnosed depression. This creates the risk of assisted dying being pursued and used prematurely. Accordingly, the Act’s omission of compulsory ‘cooling-off period’ procedures between the application for assisted dying and the administration of it as Oregon observes, as requested by the Human Rights Commission, is concerning.[9]
 

Secondly, the reliance on medical practitioners prognoses in (c) and (d) is also problematic, since a prognosis is more of an art than a science, which creates the risk of miscalculating life expectancy, especially when patient data is incomplete or incorrect. There is also the risk that the pliable nature of prognoses will be exploited for the sake of accessing assisted dying. These points together raise the possibility that assisted dying may be offered to those who could have improved with time.
 
While this piece has identified some core concerns regarding the End of Life Choice Act 2019, these are not exhaustive. For the concern about the Act’s scope is not just about this sole piece of legislation but its potential expansion and encroachment on other vulnerable groups, including the disabled, the elderly, and the young. If the progression in legislation and rhetoric regarding euthanasia in Belgium and Netherlands is anything to go by, then the concern about a slippery slope is more than just a fallacy but a fact.
 
Jordan Jones is a husband, a manager at Eden Christian Hostel, and a PhD student at the University of Otago.
 
[1] End of Life Choice Act 2019, s 2A.
[2] “Doctors want no part in assisted suicide”, Doctors Say No, https://doctorssayno.nz/, accessed 19/08/20; “Euthanasia – our opinion, Hospice New Zealand, https://www.hospice.org.nz/resources/end-of-life-choice-act-our-concerns/euthanasia-our-opinion/, accessed 19/08/20.
[3] End of Life Choice Act 2019, s 7.
[4] End of Life Choice Act 2019, s 18B.
[5] End of Life Choice Act 2019, ss 5A and 6.
[6] End of Life Choice Act 2019, s 11.
[7] End of Life Choice Act 2019, s 4.
[8] End of Life Choice Act 2019, s 4.
[9] “Assisted Dying: The human rights debate,” Human Rights Commission, https://www.hrc.co.nz/news/assisted-dying-human-rights-debate/, accessed 17/08/20.