By Phillipa Malpas
The End of Life Choice Bill put forward by MP David Seymour in 2015, passed its final reading in parliament on Wednesday 13th November, with 69 MPs supporting a change in the law, and 51 votes opposed. Although the legislation has been passed by parliament, the final decision as to whether terminally ill New Zealanders will have a choice about their manner of dying, lies with the outcome of a referendum in 2020.
The Bill intends for terminally ill New Zealanders who have less than six months left of life, the option of requesting and receiving an assisted death from a qualified medical practitioner if they fulfil certain eligibility criteria. They may be provided with a lethal dose of medication that they take at a time of their choosing, or they may be administered a lethal dose of medication given by a health professional. These practices are collectively known as assisted dying. Central to both situations is the intention of the individual and the medical practitioner that the patient die as a direct result of either ingestion or administration of the medication. An individual must initiate the conversation with a health professional about an assisted death, and a strict duty of care concerning how an individual is assessed to be eligible for an assisted death lies at the heart of the Bill.
As anyone who has followed this bill throughout its four year history will know, debate on both sides of the issue has been passionate, contentious, and at times fierce and unrelenting. Those who oppose a change to the law argue – among others things – that permitting assisted dying may result in the most vulnerable in society being at risk from the law being abused. This includes the very old, those with dementia, the disabled, and those who are mentally unwell. Moreover some argue that over time, the eligibility criteria permitting assisted dying may broaden to include not just those who are terminally ill or suffering from a grievous or irremediable condition, but also those who may wish to die due to other non-terminal conditions: a slippery slope argument.
Support for a change in the law can be found in ethical arguments that prioritise the rights of individuals to make decisions about how they live their lives – including the right to determine when and how one dies.
The late Lecretia Seales eloquently outlined her perspective in this regard;
“I am the one who has been inflicted with this disease, no-one else. It is my life that has been cut short. So who else but me should have the authority to decide if and when the disease and its effects are so intolerable that I would prefer to die? I am not saying that I will necessarily choose to exercise this right, and nor for one moment am I suggesting others in my position should be asked to make such a choice. I am simply saying that I, Lecretia Seales, a human being confronted with the inescapable reality of my death, and the prospect of great suffering – for me and those who love me – must have the right to determine when I have reached the end of the road.
This right belongs to me and none other.”
Although there is no explicit right to die that would oblige another person to end your life, some of the rights we have imply the right to die. For instance, under the NZ Bill of Rights Act 1990, Section 11, “Everyone has the right to refuse to undergo any medical treatment”. An adult has the right to refuse any medical treatment even if that refusal results in the death of the individual. If the law accepts that a person has a right to refuse any medical treatment which causes their death, is it reasonable to posit a right that permits an individual to request assistance to die? Some people argue that it does.
A further ethical argument that supports assisted dying being legally available finds its justification in the principle of beneficence. Individuals for whom medical treatment cannot effectively manage their suffering ought to be provided with the means to end their life if that is their choice. Supporters of this view argue that the right and compassionate thing to do, is assist them to die when that is their decision.
The ethical, practical and faith-based arguments on both sides of the debate – pro or anti a change in the law – have in common the desire to ensure New Zealanders have a ‘good death’. When I asked my class of third year medical students what a good death meant to them, the range of responses was probably unsurprising: to be able to say goodbye to loved ones (and have a big party in advance of dying!); to prepare oneself to die and to put things right; to die without pain or suffering (preferably while asleep); to die quickly; and for some, to be able to end one’s life when things become unbearable. A few students said that their views had been shaped by the experiences of witnessing the decline and death of older relatives. In some cases the dying had been a sad but ultimately positive experience that included excellent palliative and hospice care, and a good death. One or two students felt that the dying and death of a grandparent had been extremely difficult and they wanted an assisted death for themselves if they were ever in a similar situation. These perspectives mirror studies in the literature.
Various polls, our research and the research of others, has shown that the majority of New Zealanders, from all walks of life, support an assisted death in qualified circumstances that include strict eligibility criteria, tight regulations, and stringent safeguards. When we surveyed general practitioners (GPs) in NZ in 2013, of the 650 GPs who responded to the anonymous questionnaire, some GPs disclosed that they had explicitly assisted their patients to die, alleging that nurses had also been involved. In our 2017 study exploring NZ doctors’ and nurses’ views on legalising assisted dying in NZ, 37% of doctors and 67% of nurses agreed “that assisted dying should be legalised in NZ assuming provision of appropriate guidelines and protocols”. Doctors and nurses wanted a range of protections to support their safe participation in assisted dying if it became legal, and the establishment of rigorous assessment, administration, and accountability systems for actioning a patient’s request.
One doctor wrote, “Some development of Good Medical Practice in Assisted Dying. This is so this is not just a default procedure but an active positive culture as to how assisted dying should be a praiseworthy part of clinical work”.
If New Zealanders vote for a law change in 2020 and assisted dying becomes legally permissible it will give terminally ill Kiwis a choice about the manner and timing of their death. If overseas evidence is anything to go by (and we should pay close attention to what is happening in countries like Canada and the Australian state of Victoria), many individuals who are provided with the means to end their life may not end up taking it. Some may change their mind, while others may become too unwell to take the medication independently. For many terminally ill Kiwis facing their imminent mortality, an assisted death will not be their choice. And that is as it should be.
 Malpas P, Mitchell K, Johnson M. I wouldn’t want to become a nuisance under any circumstances”: A qualitative study of the reasons healthy older individuals support medical practices that hasten death. NZMJ. 2012;125(1358):9-19
 Taken from: http://lecretia.org/
 Rae N, Johnson MH, Malpas PJ. New Zealanders’ attitudes toward physician-assisted dying. Journal of palliative Medicine. 2015;18(3):259-65
 Lee. CH, Duck IM, Sibley. CG. Demographic and psychological correlates of New Zealanders’ support for euthanasia. New Zealand Medical Journal. 2017;130(1448):9-17
 Horizon Research Limited [Internet]. Auckland: Horizon Research. 2012. New Zealanders’ views on End of Life Choices; [cited February, 2015]; [1-29]. Available from: http://www.horizonpoll.co.nz/attachments/docs/horizon-research-end-of-life-choices-survey–1.pdf
 Malpas. P, Mitchell. K, Koschwanez. H. End-of-life medical decision making in general practice in New Zealand—13 years on. NZMJ. 2015;128(1418):27-39
 Oliver P, Wilson M, Malpas P. New Zealand doctors’ and nurses’ views on legalising assisted dying in New Zealand. The New Zealand Medical Journal. 2017;130(1456):10
 Ibid, at page 20
Conflict of Interest Statement: I am a member of the End of Life Choice Society of NZ; an organisation that seeks legal recourse to assisted dying. I have not received funding from the End of Life Choice Society of NZ for my research.
Phillipa Malpas is an Associate Professor in Psychological Medicine at the University of Auckland. She is an expert in medical ethics.