Legal specifics clarified for Hospice NZ
The hazy definitions scattered throughout the End of Life Choice Act concerned Hospice NZ to such a degree that the organisation felt that they had to seek legal clarification about several elements of the legislation through the High Court in June 2020.
Hospice NZ took a proactive approach to the End of Life Choice Act’s lack of clarity and detail around being a conscientious objector while the legislation was awaiting its final approval in the binding referendum.
The organisation sought a Declaratory Judgement from the High Court to clarify questions including:
Whether an organisation can conscientiously object and operate a ‘euthanasia-free’ service?
Whether a DHB or other funding agency can decline to fund or contract with an organisation that does not provide ‘assisted dying’?
Whether the Act’s obligations on the health practitioner providing ‘assisted dying’ overrides the existing standards of ethical, clinical or professional judgements and their obligations under the Code of Health and Disability Consumers’ Rights?
The judgement
After a two-day hearing in Wellington, Justice Jillian Mallon’s statement clarified organisations such as Hospice NZ have a right to hold conscientious objection – and the Crown should not be able to override that through funding decisions.
Organisations like hospice services, aged care facilities or GP practices, for example, can object to assisted dying, as set out in the End of Life Choice Act, happening on their premises by their staff.
The mandatory provisions in the Act do not override the Code of Health and Disability Consumers’ Rights. The Act should not override the standard ways in which a health care practitioner determines competency and informed consent without coercion. There is concern that the Act sets a much lower standard for both as part of the assessment process. However, doctors and nurse practitioners will still be required to comply with all their usual duties and obligations. For example, the standards for informed consent by the Medical Council and the Ministry of Health guidelines for responding to elder abuse and neglect.
The statement also clarified attending medical practitioners must have appropriate qualifications and experience to undertake assisted dying services, something the Act failed to clarify. The judgement outlines that an attending medical practitioner involved in the application of ‘assisted dying’ must be practising within a scope of practice that includes care of the dying (yet to be developed for the EOLC Act), and have been involved in the patient’s care. They must also have sufficient skill, expertise and knowledge of the patient to be able to properly undertake the assessments, provide the advice and reach the opinions required of them.
The full judgment is available here – Hospice New Zealand v Attorney-General EOLC Act Judgement June 2020.