Standing up for Vulnerable New Zealanders against the End of Life Choice Act

What are the Fatal Flaws in the End of Life Choice Act?

What does the overseas experience show?

Open Statement about the Dangers of the End of Life Choice Act

If you are a New Zealand lawyer* or legal academic you are invited to sign this statement here

We are lawyers and legal academics from across New Zealand, with experience in diverse fields of law and representing a variety of ideological and political views. We are unanimous, however, in our concern over the care of New Zealand’s vulnerable communities and the compassionate treatment of its sick, disabled and terminally ill.

We make this public statement to express our opposition to the End of Life Choice Act 2019 (“the Act”) and to warn New Zealanders against the dangers of voting for the Act to come into force at the 2020 referendum.

If it were to come into force, the Act would legalise what it terms “assisted dying”. Under the Act’s provisions this would involve medical and nurse practitioners, overseen by the Ministry of Health, ending the lives of eligible patients through lethal ingestion or injection upon a request to a medical practitioner (known as euthanasia), or providing them with a lethal dose of medication to ingest or receive intravenously (known as assisted suicide). Under current New Zealand law, as the case of Seales v Attorney General confirmed, “assisted dying” constitutes the offences of culpable homicide and aiding and abetting suicide under sections 160(2)(a) and (3) and 179 of the Crimes Act 1961. The Act proposes to override these fundamental provisions by effectively permitting homicide and assisted suicide in some medical cases. This would represent a profound shift in New Zealand law, the practice of medicine, and the field of medical ethics.

This Act would also profoundly impact New Zealand society. We believe that the mark of a civilised society is measured by the manner in which it treats and protects its weakest and most vulnerable members. The Act’s drafters claim that it would be targeted at a “small but significant group of competent adults who are not vulnerable and who wish to die without unbearable suffering and pain”.1 This claim is patently false because anyone who is eligible is necessarily vulnerable.2 We consider that the Act would place many vulnerable, terminally ill members of our community at greater risk of premature death, as a result of neglect, coercion and other forms of abuse, as well as misdiagnosis or prognostic error and uncertainty.

We concur with the assessment by Paula Tesoriero, the New Zealand Disability Rights Commissioner, that the safeguards in the Act are “woefully inadequate in order to protect the lives of all New Zealanders” and that consequently there may be wrongful deaths if it comes into force.3 We are particularly concerned at its potential impact on Māori, who are over-represented in our suicide rates each year, in terminal, mental and chronic health illnesses, and in disabilities. We note that according to the Waitangi Tribunal, “many of these illnesses and problems are practically at epidemic levels”.4

For vulnerable terminally ill people who lack access to support to live (particularly those who are also disabled and/or Māori) the choice to die would not be a truly voluntary one. By redefining a “health service” to include the administration of a lethal dose,5 the Act also creates a financial disincentive for our Ministry of Health and our health services to provide adequate and timely care to people who would otherwise find themselves eligible to receive a lethal dose.

Given the diversity of vulnerabilities within New Zealand society, we do not accept that a safe regime for euthanasia and assisted suicide can be implemented in New Zealand under this Act. As lawyers, we are all too aware of the pressures and abuses that can be brought to bear upon people who are in a state of weakness or vulnerability, by those family members or carers who are supposed to protect them. We know from our extensive experience as lawyers that once a vulnerable person comes under the manipulative control of another, it can be almost impossible to distinguish whether or not that person is truly exercising their free will.

We hold many other concerns over the Act, including its lack of any effective or meaningful oversight of the proposed euthanasia process; the almost complete lack of transparency in that process; its poorly drafted criminal immunities; and the false or questionable assertions of fact in its original Explanatory Note.

Our politicians have handed the New Zealand public an extremely dangerous law which is not fit for purpose. When it comes to safeguarding the wellbeing and safety of vulnerable New Zealanders, we consider the risks associated with the End of Life Choice Act to be unacceptably high.


1. Explanatory Note to End of Life Choice Bill 269-1, available here

2. The New Zealand Human Rights Commission Best practice guidelines for the prioritisation of vulnerable customers (Margaret MacDonald and Sally Carlton, New Zealand Human Rights Commission, 2016) at 3 includes, in its definition of ‘vulnerable’ New Zealanders, a person who “has been diagnosed with a chronic illness or a terminal illness”.

3. Interview with Paula Tesoriero, TVNZ Breakfast, 6 July 2020, available here

4. Te Manutukutuku (Waitangi Tribunal), Issue 68, June 2015.

5. Amendment to Section 2(1) of the Health and Disability Commissioner Act 1994 (1994 No 88), Schedule to End of Life Choice Act 2019, available here

*Either the holder of a practising certificate, or admitted to the roll of Barristers and Solicitors of the High Court of New Zealand

Signatories:

GrantIllingworth QCLitigation
IanMillard QCCivil litigation, Trust law, Maori issues
JudithAblett-Kerr ONZM QCLitigation
MatthewCasey QCLitigation, environmental, public law, property litigation, professional discilplnary
PeterMcKenzie CNZM QCCompany and securities law, insolvency, judicial review and administrative appeals
VictoriaCasey QCPublic law, human rights
Dr. DonaldMathieson OMNZ, QCEvidence and Administrative Law (Retired)
CharlesRickett (Professor)Private and Commercial Law
DavidMcLauchlan (Professor)Private Law
JessicaPalmer (Professor)Trusts, contracts and commercial law
PaulRishworth (Professor)Public Law
RexTauati Ahdar (Professor)Academia (Competition Law; Law and Religion)
RonPaterson (Professor)Health and disability law
WarrenBrookbanks (Professor)Criminal law, mental health law, therapeutic jurisprudence
GrantMorrisAssociate Professor in Law, Dispute Resolution, Legal History
MāmariStephensAssociate Professor in Law, Maori constitutionalism, law and language Welfare law
MarcusRobertsSenior Lecturer in Law, Contract/Torts
NicholasDrakeSenior Lecturer in Law, Commercial Law
Dr Huhana (Susan)Hickey MNZMHuman rights and disability
AaronMilnesProperty / Agri-business
AedeenBoadita-CormicanPublic Law, Litigation, contracts and commercial
AlexanderShinkarenkoCivil, Commercial, Criminal, Immigration, Personal and Company Insolvency, Debt Enforcement, Trusts and Estate
AnaFrueanEmployment
AndrewClementsCorporate and Private Wealth Succession
AnnaCaseyRegulatory Compliance
AnthonyRogersCriminal law and mental health law
AshleySharpACC / Medical; Employment, Civil Litigation
AudreyChong-SchmidtGeneral Practice
BeminahennedigeFernandoHuman Rights Law
BenMartellCommercial, Human Rights
BernieAllenAsset Planning,Trusts
BharatBhanabhaiConveyancing
BlairFranklinCommercial and property
BradleyBottingCommercial Law
BrandonWattsEnvironmental and Planning, Regulatory
BrettJonesFamily Law
BridgetQuirkeCorporate Commercial
BruceDavidsonGeneral, Commercial, Trusts, Estates, Family
BryceWilliamsElder and succession law/private client
CalebStandenProperty, commercial, trusts
CatherineMcCallumResource management
CatherineQuinFamily, elder law, estates
CedricCarrancejaEnvironmental, Resource Management and Local Government
ChaoweiFanCommercial Litigation
CharlotteGriffinPublic Law and Civil Litigation
CherylSimesProbate and Estates
ChrisBurkeProperty (including elder law)
ChrisCantillonProperty
ChristieKillipPrivacy
ChristinaLeeFamily Law
ChristineMarchTax
ChristopherBarryCommercial and Civil Litigation
ChristopherO'BrienProperty
ConradBaceInformation Law
CraigBoyesFamily
DanielKleinsmanMaori Law and Public Law
DanielKerrCivil Litigation
DanielClausenTaxation and Property
DannielleBellCivil Litigation
DaveAnanthTaxation
DavidMurphyProperty, commercial, trusts, elder law
DavidSimpkinProperty, commercial, estates, trusts, (including elder law, Wills/EPOAs)
DavidPattersonTax , Commercial, Policy
DeanTobinLitigation
DeidreMorganImmigration, Wills and Trusts, Conveyancing
DeborahManningHuman Rights, Refugee, and Immigration
DianeScrivenMental Health
DianeLowProperty
DonaldEvansElder Law
DorisTuProperty/Commercial/Asset Protection
DouglasRowanElder law, estates, trusts, property, commercial
EbenKitchingRegulatory work, Taxation, Risk & Compliance
EmilyHartson-MaeaFamily, Estate planning, Elderly Law
EmilyHocklyPublic law
EoinLawlessInsurance, Dispute Resolution
ErinJudgeCriminal, public, family
FintanDevineGeneral Practise
GabrielleThompsonLitigation
GaelGoulterFamily law
GarethLewisCivil litigation
GeraldineCrudgeEmployment
GilesBrantLitigation
GloriaKimCommercial litigation
GrahamSimpsonConveyancing, Estates, Elder Law
HelenaMunkowitsConstruction Law
HemiArthurCriminal and Family
HughFultonEstates, wills , trusts, employment
IanBassettContract and commercial litigation
IanMcIntoshHuman Rights
IsabellaBroadbentEmployment law
JaeKimCriminal law
JamesColemanTax
JaredOrmsbyLitigation
JeanineMitchellGeneral practice, trusts, estates, relationship property
Jemmade VriesElder law & Succession
JennyBeckFamily and Employment
JeremyBrowneCivil litigation
JeromeWilliamsonPrivate Client
JessKeatingCivil Litigation
JessieDuffin (nee Hitchcock)Resource Management
JoannaPidgeonProperty Law
JoeO'NeillGeneral Practice
JohanneGreallyFamily
JohnKennedy-GoodRetired (Associate Member of the NZ Law Society)
JohnLambornFamily Law, Property Law, Estates Wills and Trusts
JohnLucasBusiness
John PaulGouldingGeneral Practice
JoshuaPietrasCivil Litigation, Employment, Criminal
JudithBullinCommercial/property
KimKyleFamily, Property, Trusts, Wills, Estates, Elder Law
KrisMorrisonCommercial
LaurenPeggAll aspects of family law
LepekaTatilaCriminal
LesleyGrantProperty law, ElderLaw, Estates And Relationship Property
LisaGraceConveyancing
LisaAbramsHuman Rights, Privacy
LizLimBanking and finance
LorraineSmithCriminal Law
LucyRogersHuman rights law
LynetteDuncanGeneral Practice
MadeleineFlannaganFamily Law, Civil Law, Criminal Law
MagandriWalkerA range of community law, including family, employment, tenancy and consumer law.
MaileSanftFamily & Property
MargaretBearsleyPublic Law
MaricelWeischedeRefugee, immigration, media/entertsinment
MarieWeaversFamily Law
MarkDonovanEmployment Law
MarkRussellCommercial
MarkHendersonCivil Litigation and EmploymentÂ
MarySpillaneFamily
MaryMcCormick (nee Morais)General
MatthewLawsonResource management and Civil litigation
MelissaBourkeElder Law, Lawyer for the Subject Person, Trusts and Relationship Property
MichaelFisherBarrister
MichaelGraysonSolicitor
MichaelHocklyGeneral Practitioner
MichaelMorrisonCivil and Commercial Litigation
MichaelNiddProperty, Trusts, Employment , Relationship Property
MinaRassamLitigation
MiriamArcherProperty, Trusts
MonicaKimCriminal
NicholasTaitGeneral Practice/Property Law
NicoleLim-KwanCriminal
PatrickKennellyGeneral Practice
PatrickWilsonCommercial and Finance
PaulKnowsleyCriminal/Traffic
PaulO'NeillProperty Law and General Practice
PaulSaundersCriminal Law, Public Law, Tax
PaulCollinsDiscipline and regulation in the legal profession
PaulWestburyCommercial Law
PaulCoweyCivil litigation
PaulaWilsonEmployment
PauloGarciaCommercial Law - Property, Wills & Trusts, Estates, Business Migration, Immigration
PeterHardieGeneral Practice
PeterMcleodElderly Law/Trusts/Estates
PeterSaraACC
PeterMcKenzie-BridleEmployment, ACC, Civil Disputes
Petervan RijCommercial
PhilBlakeleyTax
PhilipHamlinCriminal Law
PravinaSinghCriminal, Regulatory, Civil, Public
RachelTanTrusts, Wills & Estates, Succession & Asset Planning, Superannuation, Relationship Property
RachelGrantMaori law and Public law
RachelOldham-Ormiston (nee Oldham)Enrolled Solicitor
RachelPeetersFamily Law
RaeNieldConsumer and supply chain
ReneeDeyProperty, Private Client and Family Law
RhysThompsonCommercial Law
RichardMcLeodImmigration, Refugee and Human Rights
RichardWoodConveyancing, Criminal and Civil litigation
RichardCaugheyFamily Property Trusts
RichardFlinnLitigation
RoshanaChingLitigation
RubinstineManukiaVarious (in-house)
SamHoodCivil Litigation, Employment, Law Firm Management
SamuelWadhamCriminal
SaraJonesElder, Estates and Contract/Commercial
SarahHoldernessLitigation, Construction
SarahMckenzieCriminal, BORA and Tort
SarahUlmerInsurance, Dispute Resolution
SharonTainuiTax and commercial law
Sharon, JanetHagueTax
ShelleyEdenEmployment
Si TongChenFamily Law
SimonGreeningEmployment
SophieClarkEmployment
StephanieCorbanLitigation and Dispute Resolution
StephaniePettigrewFamily Property
StephenMullinsCorporate/commercial
StephenPenkProfessional Teaching Fellow (Torts, Privacy Law and Legal Method), University of Auckland
SteveKeallCivil Litigation
StevenO'ConnorLitigation
StewartGermannCommercial; franchising; business
Stuartvan RijInformation Technology
SusanMartellDisability and mental health
Telesia ViSekeniImmigration, Family, Elderly Law
TessaSimpsonMaori law, Treaty of Waitangi
TesuaMuaitangataCriminal
ThomasSutcliffeCriminal
Tian YiYaoLitigation
TimConderCivil and Criminal Litigation
TimothyGouldingElder Law, estate planning, wills,property and trusts
TimothyOrrTrusts and Estates
UrimShinProperty
VirginiaMillsFamily Trusts Wills Estates Conveyancing
WarwickWrightProperty, business, trusts and estates
ZacharyKateneLitigation

“As a disabled person who has also worked in human rights law, I am deeply concerned at the lack of protection and safety mechanisms in place for at-risk groups such as disabled and indigenous Māori who already experience institutionalized racism and discrimination in the health system. The End of Life Choice Act will only enforce this discrimination as we have not yet addressed this or the high suicide rates amongst Māori. Until we do, there is a real risk of any euthanasia and assisted suicide law going demonstrably wrong for these groups.”

Huhana Hickey (LVNZ Spokesperson)

Disability Rights Advocate, former Legal Academic and Human Rights Lawyer

“The most important responsibility of any government is to protect the lives of the governed. Under the proposed law, it is inevitable that some people will die through coercion or mistake. For those individuals, our government will have failed to fulfil its most fundamental duty; but those errors can never be reversed.”

Grant Illingworth QC

Public, Constitutional, Administrative, Commercial & Relationship Property Law

“I agree with the Disability Rights Commissioner’s position that the End of Life Choice Act should not be passed into law, because it poses significant risks to vulnerable New Zealanders and its safeguards are procedurally and substantively deficient for New Zealanders suffering from terminal conditions.”

Deborah Manning

Human Rights, Refugee, and Immigration Lawyer

“The End of Life Choice Act has the potential to legitimise attempts by people such as relatives, and pro-euthanasia advocates to encourage, convince or even coerce vulnerable older New Zealanders into making decisions to end their own lives. For this reason alone, the End of Life Choice Act should not be enacted.”

Ian McIntosh

Elder Law and Human Rights Law Commentator

“The End of Life Choice Act will lead to the victimisation of vulnerable New Zealanders. Although its stated purpose is to offer choice to a small number of suffering people who are “not vulnerable”, it actually applies to large numbers of highly vulnerable New Zealanders who could find themselves eligible for euthanasia or assisted suicide. A right to die for a few Kiwis could very quickly become a duty to die for many others.”

Richard McLeod (LVNZ Spokesperson)

Human Rights, Refugee and Immigration Lawyer

“Any law to legalise ‘assisted dying’ must pass two tests. It must demonstrate that the existing law is defective; and, if (and only if) that is so, it must be constructed in such a way as to ensure that it does not put vulnerable people at risk of harm, including self-harm. In my view the End of Life Choice Act does not pass either of these tests. As for the second test, the various claims which the act’s supporters have made that no vulnerable person will be coerced or pressured into euthanasia are unfounded – not only because of the hopelessly inadequate safeguards that are contained in the Act itself, but given the mounting evidence of abuses in those jurisdictions which have passed similar laws. In any event, the UK courts have recently found that even a judicial inquiry would not provide a foolproof way to detect coercion or pressure in euthanasia cases. I therefore fail to see how New Zealand doctors could be expected to do any better, particularly given the extremely limited powers of inquiry which this Act affords them.”

Lord Carlile of Berriew CBE QC LLD

Honorary Member of LVNZ

“From a criminal law perspective I have real concerns over how it will be possible to detect abuses that will occur around this legislation, quite apart from how abuses will be investigated and prosecuted.”

Professor Warren Brookbanks

Criminal law, Mental Health law and Criminal Justice expert

Authorised by Richard McLeod, Level 11, 59 High Street, Auckland