15th November

Medically assisted dying

As from 7 November 2021, in terms of the End of Life Choice Act 2019 (the “Act”) persons who have a terminal illness and who meet the criteria established in the Act have the option to lawfully request medical assistance to end their lives. The Act creates a lawful process for assisting eligible persons who decide to exercise such option.

There were two prior attempts to pass a Bill of this nature, one in 1995 and the other in 2003 but both never progressed beyond their first readings. There was high opposition to the passing of the Act and was preceded by a national referendum.

The Act is required to address and balance two competing interests namely, access to the right afforded by the Act and to provide appropriate safeguards to protect vulnerable persons against abuse of the Act. We outline some of the details here for your information...Eligibility criteria
A person who is eligible for assisted dying must meet all of the following criteria: -

  1. Is 18 years or over;
  2. Has New Zealand citizenship or is a permanent resident;
  3. Suffering from a terminal illness that is likely to end the person’s life within 6 months;
  4. Is in an advances state of irreversible decline in physical capability;
  5. Experiences unbearable suffering that cannot be relieved in a manner that the person considers tolerable;
  6. Is competent to make an informed decision about assisted dying.

The first two criteria are factual enquiries. The next four are medical enquiries which are more difficult to determine.

The Act refers to unbearable suffering that the person considers not tolerable. The suffering criteria thus seems to be a subjective test. There is also no express requirement that it must be physical suffering. Accordingly, potentially mental suffering could be meet the criteria but this remains to be tested.

The Act expressly provides for a meaning of “competent to make an informed decision about assisted dying”. It requires the person to understand the information about the nature of assisted dying that is relevant to the decision, retain that information to the extent necessary to make the decision, use or weigh that information as part of the process of making the decision and communicate the decision in some way.

Process for assessing eligibility
The Act provides for a person who wishes to exercise the option of receiving assisted dying to inform their medical practitioner of their wish. The medical practitioner must then comply with a number of requirements prescribed by the Act. Once these requirements are met and if the person wants to continue, the medical practitioner must provide the person the approved form referred to in the Act for signature.

The medical practitioner must then reach the opinion that the person is eligible or is not eligible or is eligible if it were established that the person was competent to make an informed decision about assisted dying (under the procedure set out in section 15).

The attending medical practitioner must then ask the SCENZ (Support and Consultation for End of Life in New Zealand) Group, a group established under the Act, for details of an independent medical practitioner and ask the independent medical practitioner for their opinion. The independent medical practitioner, after having assessed the persons and read the medical files of the person, may then reach the opinion that (i) the person is eligible, or (ii) is not eligible, or (iii) is eligible provided itis established that the person is competent to make an informed decision about assisted dying (under the procedure set out in section 15).

Third opinion – section 15
If the medical practitioner or the independent medical practitioner believes the person may be eligible but the competence to make a decision is in question, then a third opinion by a psychiatrist is required.

Eligible or not
If the person is found not to be eligible, they must be notified and explained the reasons for the opinion. If the person is found to be eligible, further processes are prescribed by the Act before one is to receive the administration of medication for assisted dying. If the person chooses to receive the medication, the medication may then be administered to the person.

Conscientious objection
The Act provides that a health practitioner is not under any obligation to assist any person who wants to exercise their option of receiving assisted dying under the Act.

The Act, as with the option it provides, is likely to continue to cause much debate. How the Act will be interpreted and how practically it will work will be seen in time. For now, those who meet the eligible criteria have the option to lawfully request medical assistance to end their lives.

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