The Ministry of Health is reviewing the operation of the End of Life Choice Act 2019. This is an extract from our submission to the review, from the section dealing with health practitioners' participation in providing euthanasia and assisted suicide.

Overview:

(1) Conscience is integral to medical practice and to healthcare.

(2) Existing policies and official attitudes do not adequately respect the law as it stands and need to be improved.

(3) There should also be clear protection for institutional conscience.

(4) The scope of conscience protection should be clarified, and extended to others who are not health practitioners but might be involved in the assisted dying process.

(5) If eligibility for euthanasia and assisted suicide is expanded, more doctors are likely to have conscience concerns which deserve protection.

(6) We recommend amendments to strengthen conscience protection in the EOLCA.

(1) Conscience is integral to medical practice and healthcare

Medicine involves a constant exercise of judgment about how to achieve “the goods of health and healing.”(Symons, 17) The practice of medicine “is characterised by a multiplicity of ethically complex situations” which means that doctors have to “foster a capacity for sound ethical judgment.” (Symons, 66)

In other words, doctors are not mere service providers. Their job is not simply “to practise in accordance with the values of the state and relevant medical authorities as well as the considered preferences of their patients.” (Symons, 25) They are supposed to exercise professional, ethical judgment. Without the freedom to make these decisions, doctors will never develop the capability for moral reasoning that is essential to pursuing health and healing in every aspect of medicine, not merely in contentious procedures like euthanasia.(Symons, 12)

Conscience can be understood as a commitment to discover what is right and to act accordingly. (Symons, 43) It is “a deeply-felt belief that it is wrong for [a practitioner] to provide the assistance for personal, moral reasons internal to them.” (Hospice New Zealand v Attorney-General, [210]) It is therefore distinct from clinical / medical or legal concerns. (Hospice New Zealand v Attorney-General, [197]-[209]) A conscientious objection in medicine is always an objection “to a procedure and not to a person.”(Anscombe Bioethics Centre)

As a society, we value freedom of conscience because we recognise that forcing someone to act against their deepest, identity-conferring beliefs causes moral injury. “To seriously violate conscience is, in a very meaningful sense of the word, to do violence to one’s self.” (Symons, 57) That is why the New Zealand Bill of Rights Act 1990 recognises that freedom of conscience, religion, and belief are fundamental rights that can only be limited for good reasons.

(2) Feedback to Health NZ treats doctors’ conscience rights as a barrier or obstruction

‍For example, a summary of feedback prepared for the SCENZ Group raises issues about “constraints posed by conscientious objections” (Email, 7 December 2023), and emails about a hospice’s institutional conscientious objection show this being treated as an“obstruction” including by Health NZ. (Email, 13 December 2023) This undermines the importance of conscience for individual doctors and therefore for the medical profession as a whole. These documents, obtained under the Official Information Act, show concern for patients’ rights to access euthanasia and assisted suicide, but no equivalent concern for doctors’ fundamental legal right to freedom of conscience.

Other emails reveal complaints from euthanasia providers that Wellington Hospital pharmacy does not dispense the relevant medication due to conscientious objection. One doctor said, “They should not be allowed to opt out on the basis of conscientious objection as they are [Te Whatu Ora] employees and we need to have the service locally.” (Email, 4 December 2023) Another said, “the conscientious objections are not valid and TWO/AD service needs to step up and demand the service be provided in Wellington.” (Email, 6 June 2023) But “the onus should not be on conscientious objectors to make up for the lack of access to morally contentious services … This is ultimately the state’s responsibility, as it is the state who is committed to making these services universally available.” (Symons, 81) To its credit, Health NZ recognises this, replying, “This is not so much a question of contentious [sic] objection, then[sic] question about commissioning and procurement.” (Email, 6 December 2023)

The current provisions on conscientious objection are not being respected or adequately implemented. The Ministry of Health has created “care pathways” giving guidance to health practitioners who are not medical practitioners about conversations with patients seeking euthanasia or assisted suicide. This guidance says that where these practitioners have a conscientious objection, they should “meet their legal and professional obligations” including by “knowing where to direct a person who wishes to access this service.” The Ministry’s diagrammatic guidance says they should, “Connect person to doctor who is willing to provide assisted dying services (eg, refer to known AMP or support contacting SCENZ Group).” (Ministry of Health (2021a), 20-21) This breaches section 8 of the EOLCA, which says that these practitioners are “not under any obligation to assist” in this situation and that this “applies despite any legal obligation”.

The Ministry has also created a policy template for public hospitals. This says that a medical practitioner with a conscientious objection “should at a minimum explain [to a patient] why they do not provide the service” (and tell the patient they have a right to ask the SCENZ Group for the name and contact details of a replacement medical practitioner). (Ministry of Health (2021b), 17) This breaches section 9 of the EOLCA, which only requires an attending medical practitioner (AMP) to tell a patient of their conscientious objection (and of the right to contact the SCENZ Group). The policy template breaches the EOLCA’s conscience provisions in other ways too. For example, it says “It is expected that [hospital] staff will make all efforts to ensure a person’s death can occur in [hospital] if this is the most appropriate option”, and “If it is not practicable or reasonable for a person’s death to occur in hospital, staff must be able to make other appropriate arrangements for the assisted death to take place.” (Ministry of Health (2021b), 21) Neither of these are consistent with section 8 of the EOLCA.

The Ministry’s policy is that public hospitals are “the place of last resort” for euthanasia and assisted suicide. (Ministry of Health (2021b), 2, 21) Unless the Ministry and hospital staff are careful, this will create a culture that conflicts with health practitioners’ legal conscience rights. It will also put vulnerable patients at risk if they find themselves in an environment where this policy to provide euthanasia and assisted suicide has affected the environment they experience and the care they receive.

(3) The EOLCA should be amended to ensure that there is clear protection for institutional conscience

Institutions like hospices or rest homes should have conscience rights both for “the protection of individual conscience and [for] the preservation of institutional integrity.” (Symons, 112) Institutions like hospices are constituted by a distinctive ethos—in this case, to “neither hasten nor postpone natural death”—and this is what gives them an essential unity and character over a period of time and through changes of circumstance and staff. (Symons, 113) An institution’s ethos can also be seen as “the shared judgement of the group of practitioners who make up the institution” which thereby “facilitate[s] a form of collective action … to realise a vision of healthcare to which they jointly subscribe.” (Symons, 128-129) Failing to respect and protect the ability to maintain this ethos may jeopardise both the institution and the services it provides. (Symons, 134)

In Hospice New Zealand v Attorney-General, the High Court said that, “an organisation may well have an entrenched moral ethos through which it operates. So far as is practicable, an organisation should have the benefit of the right to freedom of conscience and to hold its opinions free from interference.” (Hospice New Zealand v Attorney-General, [103]) The judge agreed that the EOLCA allows a hospice to “exclude assisted dying from its services” and “from the work to be performed by the health practitioners it engages or employs.” (Hospice New Zealand v Attorney-General, [106]) However, Mallon J stopped short of recognising an institutional right to conscientious objection, noting that the right to object in section 8 of the EOLCA is conferred on an individual practitioner. (Hospice New Zealand v Attorney-General, [116]) So while she said that institutions “are entitled to choose not to provide [assisted dying] services”, she also said that this does not depend on them having a conscientious objection. (Hospice New Zealand v Attorney-General, [214(a)])

In practice, some difficult issues may arise if this position is not clarified and strengthened. For example, there have already been questions over whether an AMP is entitled to visit a rest home to assess one of the residents when the organisation has a position against euthanasia and assisted suicide. (Email, 16 May 2023) And concerns have been expressed to Health NZ about a rest home patient needing to be transferred to another facility for assisted death because of that organisation’s conscientious objection. (Email, 25 May 2023) In another case, Health NZ staff refer to a hospice’s conscientious objection prohibiting euthanasia assessments on site as “obstructing access to AD”. (Email, 13 December 2023)

This suggests there is likely to be increasing pressure on organisations which do not accept euthanasia and assisted suicide as part of their ethos. Therefore, an institutional right to conscientious objection should be clearly written into the EOLCA to protect freedom of conscience and to provide clarity and certainty for patients, practitioners, Health NZ, and all involved.

(4) The scope of conscience protection should be clarified and extended

‍Section 8 of the EOLCA says that a health practitioner does not have to “assist any person” to access euthanasia if the practitioner has a conscientious objection “to providing that assistance”. It is not entirely clear what “assistance” covers, though it would obviously cover direct involvement in the process. The manager of the Autonomy Team at Health NZ has advised a public hospital that supporting AMPs “to enable the person to access AD … from my point of view does not equate to being involved in the provision of AD.” He also says, “Whilst staff have the right to conscientiously object, and not take part in the provision of AD, the patients [sic] right to receive the service should not be compromised by staff preferences and/ or beliefs.” (Email, 12 January 2024)

His interpretation is inconsistent with the general position in the Hospice case, where the High Court said that the right to conscientious objection, “was intended to ensure that no-one would be required to do anything to which they were opposed on grounds of conscience” and that “the Court would look to interpret the legislation consistent with this intention.” (Hospice New Zealand v Attorney-General, [117]) This suggests that section 8 should be interpreted broadly, and it would be helpful to make this explicit in the EOLCA itself. For example, the Ministry’s template policy for public hospitals says that “Staff at [hospital] are expected to act in a way that promotes cooperation among service providers to ensure quality and continuity of services.” (Ministry of Health (2021b), 18) Some lawyers believe that at some point co-operation between an AMP and the doctor responsible for on-going care is likely to amount to “assistance”, for example if discussions are required about issues like competence or prognosis.

They also point out that other, non-medical staff may be required to assist with arrangements for euthanasia or assisted suicide, such as a hospital orderly who is asked to transfer a patient to the room where the procedure will take place. An orderly’s conscience is just as important as a doctor’s and is equally protected by the New Zealand Bill of Rights Act, but this is not reflected in the EOLCA. It should be amended to provide non-medical staff with protection.

(5) If eligibility for euthanasia and assisted suicide is expanded, more doctors are likely to have conscience concerns which deserve protection

Doctors who are already concerned about the existing law will face a higher volume of cases and a wider range of qualifying conditions. Doctors who don’t object to the current scope of the EOLCA for conditions like end-stage cancer may object to providing euthanasia if eligibility is extended to cover “grievous and irremediable” conditions (or words to similar effect). That may be because they object in principle to euthanasia for those conditions, or it may be because they are concerned that the EOLCA’s obligations—to give a definite prognosis, or to try to detect coercion, and so on—are unattainable in those expanded circumstances. Either way, we can probably expect to see a growth in doctors invoking the conscientious objection provisions.

(6) Therefore, the EOLCA should be amended to provide better protection for conscience

(a) The information requirement in section 9(2)(b) should be removed

This obliges a doctor with a conscientious objection to tell a patient that they have a “right to ask the SCENZ Group for name and contact details of a replacement medical practitioner.” Some doctors will see this information requirement as an unjustifiable restriction of their freedom of conscience, one that makes them responsible for a step in the chain of causation leading to that patient’s death. It is unnecessary to burden conscience rights like this when patients can very easily obtain this information themselves. For example, Googling “i want assisted dying” will almost instantly bring up the details of the Assisted Dying Service and links to the SCENZ Group.

(b) If an information requirement is retained in section 9(2)(b), it should be broadened to include all end-of-life options

‍At present, this requirement only gives a patient access to one type of information, about assisted death. It would be more appropriate, and more consistent with respect for informed consent as well as for conscience, to change this to a requirement to refer patients to a government website which provides information about the full range of end-of-life choices, including palliative care and access to counselling and other supports, not only about assisted death.

(c) An institutional right to conscientious objection should be clearly written into the EOLCA

‍This would be consistent with the general approach the High Court took in the Hospice case, but would provide more clarity than that decision. This is necessary because of the complexity of questions about visiting facilities like rest homes to assess patients for euthanasia, and because official attitudes are not particularly hospitable to institutional conscience.

(d) The scope of “assist” and “assistance” in section 8 should be clarified and extended

‍It should be made explicit that these terms are understood broadly, not just as referring to direct involvement in provision of euthanasia or assisted suicide. Protection for freedom of conscience should also be extended to others who might be asked to be involved with assisted death, not limited to health practitioners.

In conclusion, these changes are necessary to respect fundamental rights and to avoid causing unjustifiable moral injury

Official attitudes to conscience rights appear in different at best, even hostile. The overall pattern that emerges from the internal correspondence we obtained under the Official Information Act is that conscientious objection is seen as an obstruction and a barrier to accessing a service. In places the Ministry’s guidance on policy and practice is inconsistent with the EOLCA’s provisions on conscience. We must do more to safeguard this fundamental right, out of respect for the practitioners involved and because it is an essential feature of ethical and effective medical practice.

References

Anscombe Bioethics Centre, “Open Letter to the World Medical Association on Conscientious Objection,” www.bioethics.org.uk/news-events/news-from-the-centre/open-letter-to-the-world-medical-association-on-conscientious-objection/.

Emails to/from Health NZ and/or the Ministry of Health obtained under the Official Information Act:

• Email, 16 May 2023, “AMP assignment”.
• Email, 25 May 2023, “AMP follow up”.
• Email, 6 June 2023, “Assisted Dying Prescription”.
• Email, 4 December 2023, “Assisted Dying Compliance review”.
• Email, 6 December 2023, “Assisted Dying Compliance review”.
• Email, 7 December 2023, “Feedback summary for SCENZ”.
• Email, 13 December 2023, “Follow up from our earlier call”.
• Email, 12 January 2024, “Advice”.

Hospice New Zealand v Attorney-General [2020] NZHC 1356.

Ministry of Health (2021a), “Assisted dying care pathway for health practitioners – supporting information guide”, Wellington, Ministry of Health.

Ministry of Health (2021b), “Policy guidance for assisted dying services – Information for district health boards – public hospitals,” Wellington, Ministry of Health.

Xavier Symons, Why Conscience Matters (Oxon: Routledge, 2023).

‍