End of Life Choice Bill

End of Life Choice Bill

Member’s Bill

269—1

Explanatory note

General policy statement

Purpose

This Bill gives people with a terminal illness or a grievous and irremediable medical condition the option of requesting assisted dying.

The motivation for this Bill is compassion. It allows people who so choose, and are eligible under this Bill, to end their lives in peace and dignity, surrounded by loved ones.

The Bill carefully defines those eligible for assisted dying, details a comprehensive set of provisions to ensure this is a free choice, made without coercion, and outlines a stringent series of steps to ensure the person is mentally capable of understanding the nature and consequences of assisted dying.

Background

Bills relating to assisted dying have been debated twice before by the New Zealand Parliament. The first time was in 1995, when Michael Laws’ Death with Dignity Bill was defeated 61/29 at first reading. The second time was in 2003, when Peter Brown’s Death with Dignity Bill was defeated 60/58 at first reading.

Since that time, evidence and developments have established that there are serious problems with the current state of the law in New Zealand that will be ongoing without a legislative solution. Extensive evidence and analysis considered in the case of Seales v Attorney-General [2015] NZHC 1239 demonstrated that, without a change in the law, some people in New Zealand are suffering unbearably at the end of the lives and are taking their lives earlier than they would if assisted dying were legally available to them. There was broad consensus that palliative care cannot alleviate all suffering, including suffering that is unbearable for a person.

Continuation of the status quo cannot be an option when the risks can be managed and the law targeted to the small but significant group of competent adults who are not vulnerable and who wish to die without unbearable suffering and pain. Analysis of overseas jurisdictions where assisted dying is permitted demonstrates that concerns, including concerns about abuse of the vulnerable, have not materialised and that risks can be properly managed through appropriate legislative safeguards. In countries where assisted dying is permitted, medical practitioners and organisations have adapted well, developing guidelines that inform ethical and medical practice.

A change in the law will bring benefits beyond alleviating unbearable suffering and avoiding people being at risk of premature death. The evidence considered in Seales and overseas studies show that, when assisted dying is permitted, the quality and uptake of palliative care increases and the doctor-patient relationship is positively enhanced.

In other cases in New Zealand, the courts are treating the family members who have assisted their loved ones to die at their request with increasing leniency and compassion.

Evidence of this includes a case in 2008 in which a sentence of 6 months community detention plus 150 hours community work was given to a man who assisted his mother to die, when his mother had been suffering from the final stages of terminal stomach cancer. Another case in 2012, of a man who whose wife had been suffering from primary progressive multiple sclerosis (PPMS), resulted in a discharge without conviction for his assisting his wife to die. The public reaction to such trials has been overwhelmingly compassionate and understanding.

These cases highlight the very difficult position family members can be placed in when assisted dying is not legally available for their loved ones. It also demonstrates further issues with the current state of our law, under which it is becoming permissible, in effect, for family members to assist loved ones to take their own lives. This is clearly less ideal, less clear, and considerably more risky than a regulated process in which medical practitioners can, in limited circumstances, assist those who are suffering.

The state of the law in New Zealand is increasingly out of step with public opinion and with developments overseas. The Seales case has promoted nationwide debate around assisted dying and has demonstrated evidence of strong public support for legalising it. There will be those who remain opposed to assisted dying, including those who are opposed because of their personal views and religious or cultural beliefs. This Bill ensures that medical practitioners who are opposed to the practice are under no obligation to advise on or provide assisted dying.

This Bill provides a legal pathway that prevents medical practitioners from being charged with an offence when the request for assisted dying comes from the expressed will of a person who is suffering unbearably.

Under this Bill, it remains a criminal offence to assist a person to die except by an action undertaken by a medical practitioner in the very limited circumstances prescribed. This Bill will provide the option of relief to a small but significant number of people who suffer unendurably during the terminal days or weeks of a difficult illness, despite the best that palliative care can offer, or to those who suffer unendurably as a result of a grievous and irremediable medical condition, despite the best available medical care.

Main Provisions

The Bill defines a person eligible for assisted dying as someone who:

  • is aged 18 years or over

  • has New Zealand citizenship or is a permanent resident

  • suffers from a terminal illness likely to end their life within 6 months or has a grievous and irremediable medical condition

  • is in an advanced state of irreversible decline in capability

  • experiences unbearable suffering that cannot be relieved in a manner that he or she considers tolerable

  • has the ability to understand the nature and consequences of assisted dying.

The Director-General of Health will establish a group of medical practitioners, serviced by the Ministry of Health, known as the Support and Consultation for End of Life in New Zealand (SCENZ) Group. This group will maintain a list of medical practitioners, specialists in mental health, and pharmacists willing to participate in assisted dying. The group will be responsible for allocating replacement and independent medical practitioners, thereby ensuring that the attending medical practitioner does not choose the replacement or independent practitioner. The group will write standards of care, provide advice on medical and legal procedures, and provide practitioners practical assistance if requested.

A Registrar (assisted dying) will be nominated by the Director-General of Health and will have a number of responsibilities under this Bill. These responsibilities include maintaining a register of forms lodged with the Registrar as this Bill requires, co-signing prescriptions, establishing a procedure to deal with complaints, and reporting to the Minister of Health and End of Life Review Committee as required.

No person is obligated to take a role under this Bill, although medical practitioners who conscientiously object must refer people to the SCENZ Group.

Process

A legal process will be created for a person who asks to receive assisted dying. Two medical practitioners will have to be satisfied that the person meets the criteria required.

The attending medical practitioner must provide the person with the prognosis for the terminal illness or grievous and irremediable medical condition and inform the person of the irreversible nature and anticipated impacts of assisted dying. The medical practitioner must also encourage the person to talk about his or her choice with family, friends, and counsellors, ensure that the person has had the opportunity to talk to his or her choice of people, and do his or her best to ensure that the person has chosen assisted dying free of any pressure or coercion. Should the person wish to proceed with his or her choice, the medical practitioner must provide the prescribed form to the person.

The medical practitioner must then contact the SCENZ Group, which will refer the person requesting assisted dying to a second medical practitioner, who must be independent of the person and of the initial medical practitioner. The second practitioner must read the person’s files and examine the person and decide whether the person is a person who is eligible for assisted dying.

After the reading of the person’s files and the examination of the person have occurred, should either medical practitioner be uncertain about whether the person requesting assisted dying is competent, the two medical practitioners must jointly refer the person to a specialist with a relevant scope in mental health. The specialist must read the person’s files, examine the person, and provide his or her opinion about whether the person requesting assisted dying is competent.

Once this process has occurred, the person must be informed about whether he or she is eligible for assisted dying. Should a person be told he or she is not eligible, the reason for this must be explained.

At each step of this process, a prescribed form – the signed request form, the opinion of the attending medical practitioner, the opinion of the independent medical practitioner, and when required the opinion of the specialist – must be sent independently to the Registrar, so that the Registrar has a complete record of the decisions taken and opinions formed, regardless of whether the request has been approved or declined.

In the case that the person is found to be a person eligible for assisted dying, the medical practitioner must discuss with the person the likely timing and make provisional arrangements to be available. When the person wishes to exercise the option of assisted dying, he or she must tell the medical practitioner, who must inform the person of the medication options available, ask the person to choose one of them and to choose a suitable time for the administration of the prescribed medication, and ensure that the person knows that he or she can change his or her mind at any time. At least 48 hours prior to the administration of the prescribed medication, the practitioner must inform the registrar, who will check that all safeguards have been correctly followed and will then co-sign the prescription for the medication.

At the chosen time of the administration, the medical practitioner must confirm that the person wishes to receive the medication. Should the person wish to receive the medication, the medical practitioner must administer it and either be available to the person until death occurs or arrange for another medical practitioner to be available to the person until death occurs. The medical practitioner must then report the death to the registrar within 14 working days.

A review of the operation of this Act must start three years after commencement and be completed within six months. The report must be presented to Parliament. Thereafter, a review must be conducted every five years.

Clause by clause analysis

Clause 1 states the title.

Clause 2 describes the commencement date.

Clause 3 defines terms.

Clause 4 contains the definition of person who is eligible for assisted dying.

Clause 5 provides that the Act binds the Crown.

Clauses 6 to 18 deal with assisted dying.

Clause 19 to 22 set out accountability mechanisms.

Clauses 23 to 28 cover a range of related matters.