Top 6 Amendments

Unlike equivalent overseas laws, the New Zealand Act does not require independent witnesses to be present for any stage of the process, not even at the time the lethal dose is injected or taken.

This means that the Act doesn’t protect people who might be vulnerable to coercion, which otherwise could be prevented by the presence of an independent witness.

It also means that the Act lacks a safe level of accountability. Without the presence of an independent witness, there is no way to guarantee that the correct process was followed, that the person was eligible, and that there was no pressure from health professionals or anyone else. The stakes are high: we need to ensure that the law avoids wrongful deaths at all costs.

An amendment needs to be made to the Act so that at least two independent witnesses are required to be physically present in each case. At least two independent witnesses would be required when the person signs the request in front of the doctor, and one independent witness would be required at the time of administering or ingesting the lethal dose. The independent witness at the time of death would need to be present from the time of the competency assessment on the day of death, through to when the final death certificate has been completed. The final independent witness also needs to check, feedback and sign the final doctor's report which is sent to the SCENZ group to ensure it is accurate. 

An independent witness needs to be:

• 18 years of age or over, 

• Someone who does not currently, or in the future, stand to gain financially or materially from the death of the person,

• Someone who is not the owner of, or responsible for, the day-to-day operation of any health facility at which the person is being treated or resides,

• Someone who is not directly involved in providing health services or professional care services to the person making the declaration,

• Someone who has no connection to the medical practitioner(s) involved in the process.

Not more than one witness may be a family member of the person making the request to die.

Some claim the requirement in the New Zealand Act for a second medical practitioner’s approval in the application process is the equivalent of an independent witness. However the second medical practitioner is not required to meet any of the safety criteria listed above that would qualify them as a truly independent witness, and nor are they required to be present as an independent witness at the time of death. This means that the Act in its current form does not adequately protect vulnerable New Zealanders.

Currently there is no requirement for medical practitioners to ask the applicant questions such as:

• Has someone else suggested they make an assisted dying request?

• Has anyone exerted pressure of any kind on them?

• Are they experiencing any form of bullying? 

• Are they seeking to relieve a burden – whether actual or merely perceived?

• Are they seeking to provide a financial advantage to others through their death?

• Have they, or are they currently experiencing elder abuse of any kind?

• Are they concerned about their current or ongoing healthcare costs?

• Are they worried about their personal financial situation?

• Are they experiencing isolation or estrangement from family or friends?

• Has anyone close to them recently chosen to end their life?

The current requirement for a medical practitioner to “do their best to ensure that the person expresses their wish free from pressure” as an assessment for coercion is far too subjective, lacking in necessary definition, and largely unmeasurable. This makes the Act extremely unsafe.

It is hard to see how a medical practitioner could be successfully prosecuted for failing a patient in this regard, as the legal standard they have to meet is so inadequate and vague.

This amendment will require a formal and comprehensive assessment for coercion to be undertaken in order to ensure that medical practitioners are complying with best-practice standards to proactively investigate whether or not coercion is present. 

The Act does not require a person to be screened for depression or other mental health issues before they can be eligible for assisted dying. 

This means that the Act doesn’t protect people who are actually motivated to end their life because of their underlying mental health issues – rather than their terminal diagnosis. A truly robust and safe Act would be alert to this danger and ensure these people were provided with the right support and treatment to alleviate their mental health crisis, providing the opportunity for hope and enjoyment at the end of life. 

The Act needs to be amended to include a mental health assessment. This needs to be compulsory for all persons requesting euthanasia or assisted suicide. If depression or a mental health issue is present their request cannot proceed further. The person will then need to receive support and/or undergo treatment for their underlying mental health condition. 

Under no circumstances should the Act allow a person to be euthanised or received assisted suicide if depression is present.

We advocate for a holistic approach using the Te Whare Tapu Whā model, which includes taha hinengaro (mental health) and taha wairua (spiritual health).

Overseas, assisted dying laws often have cooling off periods between making a request and having a lethal dose prescribed. This important safeguard helps to ensure that someone doesn’t make an impulsive decision and that they have the time to properly consider all options before making the irreversible choice to take the lethal dose.

The Act is missing this important safeguard. Our amendment would require a 14-day cooling off period between approval of a request, and the prescribing of the lethal dose. It would also require a mandatory follow-up consultation during those 14 days, which must be focussed exclusively on providing the patient with information about relevant local support services and feasible alternatives to euthanaisa or assisted suicide. This consultation would have to include unbiased information about advanced care planning, hospice and palliative care, as well as pain control options. This consultation must not include any further communication about assisted suicide or euthanasia, or the patient’s request for either of these. It must be focused solely on alternative options in order to ensure the integrity of the cooling off period. 

At the end of the 14 day period, the person would need to restate their request in writing witnessed by at least one independent witness before progressing any further. 

Currently the Ministry of Health and Ministry of Justice has estimated there could be just four working days between a person’s request and their death. This means that a person could make a request on Monday and be dead by Thursday.

In contrast, the states of Oregon and Hawaii have a 15 day cooling off period. In Australia, the states of Victoria and Western Australia have a minimum 9-day cooling off period.

This law is intended to be used by those fully competent in their decision, however in its current form it fails to meet this requirement. Therefore this amendment is needed in order to ensure that only truly competent people are able to access euthanasia or assisted suicide.

While an attending medical practitioner needs to ask and confirm the person’s wish to receive a lethal dose on the day it is administered or ingested, the Act doesn’t require medical professionals to check whether the person is actually mentally competent at this time.

This is a risk because the Act does not place a maximum time limit between when the approval is granted and when the euthansasia or assisted suicide must be carried out. 

This means that someone might be competent when they are approved, but could then subsequently lose competency before the lethal dose is administered or ingested. This opens the door for potential abuse in the process. For example, someone with a 6-month prognosis who has been approved may actually live many years longer (Vicki Walsh, for example, lived nine additional years after an initial prognosis of only 8-12 months). During this time there could be significant mental health deterioration or even dementia, which would mean they are no longer able to give free and informed consent on the day of the lethal dose.

Our amendment requires that mental competency be redetermined 48 hours prior to administering the lethal dose, to the same standards as the initial competency approval.

Throughout the jurisdictions that have legalised ‘assisted dying’ in the US and Europe, annual reports of the practice are accessible online through the relevant government agencies. These reports give policy makers, medical practitioners and the wider public important information about the practice of assisted suicide and/or euthanasia each year.

This adds a layer of accountability to the process, and allows for data analysis and review. It also shows if any problematic patterns are emerging; such as a spike in those from one geographical area requesting it, or a particular at-risk demographic becoming over-represented. Currently under the End of Life Choice Act, no such reporting is required.

This amendment to the End of Life Choice Act would require detailed, annual, public reporting to correct this glaring and dangerous oversight.

This report should include the following information: 

• Total number of euthanasia or assisted suicide requests

• Total number of euthanasia deaths and total number of assisted suicide deaths

• Number of assisted suicide prescriptions written vs number of doses actually used

• Total number of requests that were declined, and the reason(s) why

• Declined patient characteristics, including:

  • gender, 

  • age, 

  • ethnicity, 

  • city/town and suburb of residence,

  • end of life care (eg. Hospice, hospital, community, none, etc.),

  • duration of the relationship with the declining medical practitioner

  • underlying illness (if any), 

  • was the patient referred for psychological evaluation,

  • whether the method requested was assisted suicide, euthanasia

  • whether family members were informed, 

  • previous family incidences of assisted suicide or euthanasia, and duration since,

  • reason(s) for requesting euthanasia or assisted suicide

• Total number of requests that were approved in this annual period

• Total number of people still living, who were approved more than 6 months ago, 12 months ago, 2 years ago, 3 years ago, 4 years ago, 5 years ago or more (provide exact duration for each), 

• Approved patient characteristics, including: 

  • gender, 

  • age, 

  • ethnicity, 

  • city/town and suburb of residence,

  • end of life care (eg. Hospice, hospital, community, none, etc.),

  • duration of the relationship with the approving medical practitioner

  • duration between intial request and death by euthanasia or assisted suicide

  • underlying illness and prognosis,

  • was the patient referred for psychological evaluation, 

  • location where the patient died (eg. home, hospital, private practice, etc), 

  • complications arising from administering or ingesting of the lethal dose, 

  • whether the method used was assisted suicide, euthanasia, or the patient died naturally, 

  • whether family members were informed, 

  • previous family incidences of assisted suicide or euthanasia, and duration since,

  • type of pharmaceuticals prescribed and/or administered 

  • duration of time from administration/ingestion to death,

  • reason(s) for requesting euthanasia or assisted suicide,

  • did the patient die during this annual reporting period, (if not, include in next reporting period until death of patient)

  • if the approving or prescribing practitioner was present at the time of death

  • whether any practitioner was present at the time of death

  • were independent witnesses present at time of death, and how many

• Total number of practitioners participating, their working region(s), and how many requests each processed, approved and declined

• Total number and details of any complaints made (verbal and written), about the promotion and/or practice of euthanasia and assisted suicide, from patients, family members, healthcare workers, or others