As oral submissions are set to be heard over the next few months for ACT leader David Seymour’s End of Life Choice Bill, examples from other countries offer a glimpse of how New Zealand could approach such legislation.
There are now over a dozen jurisdictions around the world that have legalised assisted dying. Their different approaches highlight the range of moral boundaries societies set for themselves and believe to be ethically permissible. They also demonstrate the different aspects of what policymakers in each place hold as important, and the different intentions and motivations behind assisted dying legalisation.
In late October 2017, the Victorian Parliament of Australia passed a Bill after a debate lasting four days. In doing so, it became the first Australian state or territory since 1995 to enact a form of assisted dying legislation. The Victorian Act is due to come into force in June 2019 and is a significant development for New Zealand, owing to our strong political ties to Australia and the current population of Kiwis in Victoria.
Equally significant is that Canada, with a medical system similar to New Zealand’s, in 2016 amended its criminal code to provide exemptions under sections that previously made aiding or abetting suicide, by either citizens or physicians, an indictable offence. Patients and physicians who make use of these exemptions must meet specific criteria to avoid prosecution, thereby safeguarding against exploitation and abuse. The exemptions also enable the Minister of Health to make regulations for the provision and collection of information relating to requests for, and acts of, assisted dying.
This last exemption is similar to that proposed under Seymour’s End of Life Choice Bill. One of the Bill’s provisions would establish a group of medical practitioners under the ambit of the Support and Consultation for End of Life in New Zealand (SCENZ) group. SCENZ would fall under the responsibility of the Ministry of Health and be expected to manage information relating to healthcare professionals willing to participate in assisted dying. They would also be required to maintain standards of care, provide legal and medical advice, and give practical assistance to other healthcare professionals, as required.
Much like the legislation in the Netherlands and Belgium, New Zealand’s End of Life Choice Bill also proposes an end of life review committee.
Regional review committees (RTEs) are considered a controversial safeguard in the Dutch assisted dying legislation. RTEs are made up of a physician, an ethicist and a lawyer, who also holds the chairperson position, along with a lawyer who acts as a secretary and attends in an advisory capacity only. When a physician provides a patient with a medically-assisted death, they must notify the municipal pathologist, who in turn forwards the notification to the RTE. The RTE is then required to review and determine whether the physician and independent physician’s actions were warranted under the due care criteria set out in the Act. If an RTE finds the physician did not meet the criteria, the review is sent to the Board of Prosecutors General and the Healthcare Inspectorate, which can impose criminal and professional disciplinary charges, respectively.
The controversial aspect of RTEs lies in the fact they only review cases once the patient’s life has already been terminated. For many, disciplining the physician at that point is a moment too late.
There are two notable points concerning Seymour’s End of Life Choice Bill that need to be considered.
First, while the proposed review committee is set to consist of a medical ethicist and two medical practitioners (one of whom is in the area of end of life care), it would lack a lawyer who could play a significant role in interpreting the law.
Second, and perhaps more importantly, the review committee, like RTEs in the Netherlands, would not be required to review reports from healthcare professionals until after a patient’s death, when the Bill proposes it would “report to the registrar about its satisfaction or otherwise with the cases reported”.
The issue here is that, as in the Netherlands, this could be a moment too late.
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