By: Jesil Cajes, Solicitor, McWilliam Tyree Lawyers, Wellington
In November 2021, the End of Life Choice Act 2019 (“the Act”) was enacted, meaning for the first time in New Zealand there is a lawful process by which persons may request and receive medical assistance to end their life.
This article outlines the eligibility criteria, process, and safeguards provided for by the Act.
What is assisted dying?
Assisted dying is the term for euthanasia in New Zealand. Assisted dying involves a doctor or nurse practitioner giving a person a lethal dose of medication to relieve their suffering by bringing on death, or the taking of medication by a person to relieve their suffering by bringing on death. In the Act, “medication” means a lethal dose of the drugs used for assisted dying.
Anyone may request assisted dying, but a person may receive it only if an attending doctor and an independent doctor have first confirmed that the person meets ALL of these criteria:
- be aged 18 years or over; and
- be a citizen or permanent resident of New Zealand. Citizens and permanent residents who are overseas can return to New Zealand to access the service; and
- suffer from a terminal illness that is likely to end their life within 6 months; and
- be in an advanced state of irreversible decline in physical capability; and
- experience unbearable suffering that cannot be relieved in a manner that they consider tolerable; and
- be competent to make an informed decision about assisted dying.
Crucially, an informed decision means that a person can understand and remember information about assisted dying, weigh it up and communicate this decision in some way. It must be the person’s choice to access assisted dying and without coercion.
The process of assisted dying
- The request for assisted dying: The process begins with an initial request from the person to their doctor. A doctor is not allowed to initiate a discussion or suggest to a person that they consider assisted dying.
- Establishing eligibility: Two doctors must agree that the person meets all the criteria for assisted dying and is competent to make the request. If either doctor is unsure of the person’s competence, a third opinion from a psychiatrist is required. If a person is ineligible or not competent, the process ends. The person may not access assisted dying.
- Choosing the method and time of assisted dying: If the person is eligible and competent, they select one of the methods below for receiving the medication, and when they want to receive it:
- ingestion, initiated by the person;
- intravenous delivery, initiated by the person;
- ingestion through a tube, initiated by the doctor or nurse practitioner; or
- injection, administered by the doctor or nurse practitioner.
- Administering the medication: At the chosen time of administration, their doctor or nurse practitioner must ask the person if they choose to receive the medication. If the person chooses to receive it, the medical practitioner administers it. They must be available to the person until they die. If the person does not want to receive the medication, it must be taken away.
The Act contains several provisions that seek to ensure safety mechanisms.
A person requesting assisted dying:
- Cannot access assisted dying solely because they have a mental disorder or mental illness, have a disability or are of advanced age.
- Cannot use an advance directive and enduring power of attorney to request assisted dying.
- Can change their mind at any time.
- If a medical practitioner suspects a person is being pressured about their decision, they must stop the process.
- Health practitioners can opt out of assisting a person if they have a conscientious objection. However, they must inform the person of their right to ask the Support and Consultation for End of Life in New Zealand (SCENZ) group for the details of a replacement medical practitioner.
- The Act does not require health institutions, like Hospice, to provide assisted dying services.
While the Act has a very narrow criteria, it is now legal for terminally ill, mentally competent adults in New Zealand, who have six months or less left to live, to request medication to end their life in certain circumstances.