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: