Recently the Ministry of Health released its review of the End of Life Choice Act. It’s quite a revealing read. Perhaps the most striking insight is how badly written the law is, but the review also illustrates the ideology that animates the Ministry, which underlies its proposals to erode conscience rights. The review also indicates that we can expect the number of New Zealanders euthanised to keep growing, and that we can’t expect ACT’s current member’s bill to fix anything. In fact, their proposed expansion of the law is likely to exacerbate the problems the Ministry has identified and the pressure on doctors who don’t want to participate in this regime.

The review reveals a poorly thought-out and badly written Act

Let’s start with the good news: the review shows that the Act is poorly thought-out and badly written. It doesn’t use those words but it collects multiple examples that lead to that conclusion, and it’s refreshing that the Ministry has been clear about these flaws. Here are some of the key issues they identified.

Detecting coercion

The Act is supposed to make euthanasia or assisted suicide available to patients who can make an informed choice. A patient who is being coerced isn’t making a genuine choice, so the Act says that a doctor discussing assisted death must “do their best” to make sure the patient isn’t being pressured into it by someone else. While doing your best may have been a good motto for the Scouts, the review points out that it’s “not a recognised legal threshold”. In fact, it’s subjective, because it “links the determination of whether or not this requirement has been met to the capabilities of the particular practitioner”. A doctor’s best may not be good enough. Given how important free and informed choice is supposed to be, that’s a troubling observation.

Unsuitable practitioners

The review also points out that the Act allows unsuitable practitioners to perform euthanasia. All the Act says is that doctors have to be registered and hold a current practising certificate to be an“attending medical practitioner”, which allows them to give the first opinion that a patient is eligible for assisted death and to carry out the procedure itself. As the review says, this includes “doctors who have recently graduated from medical school and are operating with provisional registration,” doctors who practise as specialists and therefore don’t have the necessary “general medical skills”, and “doctors who are required to practice under supervision due to previous concerns about their practice or behaviour.”

While it’s expected that doctors will only practice in an area where they’re professionally competent, the Act doesn’t require this and the review says that both the Health and Disability Commissioner and the Medical Council “have sought to discourage certain practitioners from providing assisted dying services.” There’s also no legal requirement to be trained to provide euthanasia or assisted suicide, which is “out of step” with the equivalent laws in other countries.

Ineffective oversight

The Act has created oversight bodies, but their functions are badly defined and as a result they are less effective than they need to be. Members of the SCENZ (Support and Consultation for End of Life in New Zealand) Group told the Ministry that they had no power to “manage which practitioners” provide euthanasia or assisted suicide, or to “intervene if a practitioner is not providing adequate care.” There’s also a Registrar, but the Act isn’t clear on when they can “approve or reject an assisted dying request” or about what they can do if doctors are “uncooperative”.

But perhaps the worst example is the Review Committee, which is supposed to provide independent scrutiny and was described as a key safeguard when the Act was being debated. The Act only allows the Committee to receive very limited information, leading one former member to tell media that the Committee had been “constrained to the point of irrelevance” and that “the oversight process was so inadequate they would not have known if someone had died wrongly”. Law firm Wotton + Kearney, submitting on behalf of the Medical Protection Society, told the Ministry that, “The Act does not provide for any in-depth independent review of assisted deaths” so that it’s questionable whether these bodies “are providing meaningful oversight and accountability of the regime overall.”

The list doesn’t end there

The review supplies plenty more examples of defects in the law, including:

• a lack of suitable clarity about whether doctors need to ensure patients are medically competent to consent to euthanasia on the day of administration;
• the “large number of requirements on practitioners, many of which are subjective, ill defined, and unclear regarding what a practitioner must do to fulfil them”; and
• the failure to specify whether someone to tries to pressure a patient into an assisted death is breaking the criminal law against trying to incite suicide.

These examples don’t inspire confidence, and it’s strange that such a new law needs so many revisions. The review identifies possible fixes, like saying that doctors must “take reasonable steps” to ensure patients aren’t being pressured, or requiring practitioners to have at least five years of experience before they can offer euthanasia or assisted suicide. But it’s hard to imagine these making more than a marginal difference, given the ideology behind the Act and revealed in the review itself.

Ideology and autonomy, “consumers” and conscience

While the Ministry provides policy advice and analysis, operational responsibility lies with Health NZ, where assisted dying services sit within the Autonomy Team. The team is aptly named; the Act’s ideology is that individuals should be able to obtain the “services” they want, up to and including their planned death, even when that requires others to compromise their most important beliefs.

“Health consumers” and “access” to “services”

The review speaks the language of medical bureaucracy. Patients aren’t patients, they are “health consumers” who require “access” to “services”. Thus the review says, “assisted dying is a health service, and as such, the provision of assisted dying must uphold health consumers’ rights in a similar manner to other health services.” This reads like a creed, one that’s open to question; is the administration of a lethal dose of medication really a “health service”? For all the certainty of that statement, elsewhere the review seems conflicted, saying that “assisted dying... is particular and distinct” and, with magnificent understatement, that it has “very different processes and outcomes” to other health services. Submitters to the review were less conflicted, telling the Ministry “overwhelmingly” that euthanasia and assisted dying do not align with the health system.

Allowing doctors to initiate conversations about assisted death

Nevertheless, the Ministry presses on. One of the Act’s key safeguards is the prohibition on doctors initiating a conversation about assisted death with their patients. This recognises that patients may be vulnerable to suggestion, especially as they contemplate the prospect of terminal illness. The Ministry would like to do away with this safeguard; it recommends that doctors be allowed to initiate conversations about assisted death and make patients aware that it’s an option while discussing their treatment and “end of life care options”. Apparently the safeguard is “contrary to health consumer rights, and is creating a significant barrier to access for some people.” But assisted death is not like other“health services”, and the Ministry’s failure to see this clearly allows it to plough ahead on its mission to improve “access”.

Undermining health practitioners’ conscience rights

In service of this mission, the Ministry is sanguine about the prospect of trampling on doctors’ consciences. Its concern for autonomy and for rights is one-sided; patients’ choices must be maximised even if that means doctors’ choices must be minimised. The Act already encroaches on conscience rights for doctors attending a patient who wants euthanasia. Those “attending medical practitioners” who don’t want to provide euthanasia or assisted suicide must tell that patient that they have the “right to ask the SCENZ Group for the name and contact details of a replacement medical practitioner.” Some of those doctors will already see this as making them complicit in a chain of causation that leads to a patient’s death. Other health practitioners have a broader right to decline to assist in providing assisted death.

In both cases, the Ministry wants to go further and require all health practitioners to “provide the contact details for theAssisted Dying Service or contact the service on their behalf” and to cooperate with another practitioner who is providing euthanasia by sharing the patient’s health information with them.

Undermining institutional conscientious objection at care facilities

The Ministry goes even further when it comes to care facilities like hospices and rest homes. Many of these organisations were established with an ethos of supporting life, not taking it. Hospices, for example, exist to “neither hasten nor postpone natural death”. As a result, they have fundamental objections to providing assisted death and requiring them to be complicit in it would compromise their reason for being. But that is precisely what the Ministry proposes, saying that these facilities should “provide reasonable access to assisted dying to those who request it.” They would have to allow assisted dying doctors on site for appointments and would have to allow them to carry out euthanasia or assisted suicide in their premises if the facility is the patient’s home or if it “would not be reasonable in the circumstances” to transfer a non-resident patient to another facility.

This would confront these facilities with an existential question: can they continue to operate in good conscience when they might be compelled to facilitate a procedure that conflicts with their fundamental purpose? That should also confront the Ministry with a question: if these facilities decide they can’t compromise their founding beliefs like this, how will their essential functions be replaced? There’s no sign in the review that the Ministry has thought through this crucial question. Instead, it repeats its mantra: “The Ministry considers that the balance of rights should favour the rights of consumers accessing healthcare, including assisted dying services.” It is explicit that these rights should trump the rights of the facilities it categories as “objecting organisations”.

Undermining the practice of medicine

This isn’t merely an issue for care facilities. It represents a failure to appreciate the vital importance of conscience for medicine as a whole. Doctors are not mere service providers, and their profession depends on reasoned moral judgments about the best ways to pursue health and healing in complex circumstances. Protecting doctors’ consciences recognises this and preserves space for ethical decision-making. Ironically, underming conscience rights in the name of patients’ access will erode the foundation that health care rests on.

Expect euthanasia to keep expanding

The Ministry predicts that euthanasia cases will continue to rise even within the current bounds of the law. It says not only that the number of applications and the number of deaths have increased over the last three years, but that they expect “an approximately 23% growth in the number of applications for assisted dying in the 2024 – 2025 financial year, compared to the previous year.” After this, they predict that “the increase in applications will slow to a steady year-on-year growth rate of 11-13% in the following years.”

For contrast, the latest report from the Registrar showed 945 active applications in the year ended 31 March 2024. There were 344 assisted deaths in this time, meaning around 36 percent of active applications resulted in a death. Applying the Ministry’s predicted growth rates, in just five years’ time we’d be looking at around 1,820 active applications per year and 660 deaths—and that’s assuming the law doesn’t change to expand access or eligibility.

But as we’ve already seen, the Ministry is keen to expand access, and the ACT Party was announcing plans to expand eligibility even before the review was finished. Currently, a patient is only eligible if they are expected to die from a terminal illness within six months. ACT wants to remove the six month limit so that any terminal illness would qualify. This would dramatically expand the reach of euthanasia and assisted suicide.

It would also exacerbate a flaw that the review has already noted. It is not clear whether a “terminal” illness also has to be incurable. If a condition can be cured with reasonably available treatment but will be fatal if left untreated, is it “terminal”? Similarly, if it could be managed or slowed with treatment so that life expectancy increases beyond six months, does it qualify under the current law? The Act doesn’t say. The question would become even more important if ACT’s change was made; many conditions will be terminal eventually if they are left untreated.

Expansion will put pressure on doctors who don’t want to participate

If euthanasia expands, the flaws in the law will matter even more than they already do. Already there are very few practitioners who want to participate in providing an assisted death. The Ministry says there are just 109 doctors registered with SCENZ as attending medical practitioners, and only 11 psychiatrists willing to assess competence where necessary. In the Ministry’s words, this is “insufficient”.

Growing demand and constrained supply are a recipe for pressure on those doctors who don’t want to participate. The Ministry’s desire to expand access at the expense of conscience will increase this pressure; already, there’s an attitude within the health system that those who are funded by the taxpayer should provide any services the law allows, one that treats conscientious objection as an “obstruction”.

We can also expect that more doctors will actively object to participating if the law expands. Practitioners who don’t object to euthanasia in cases of, say, end-stage cancer may be much less comfortable with it in cases of indefinite “terminal illness”. If they wish to opt out of provision, the main mechanism for this is the right to conscientious objection—which the Ministry wants to restrict.

Conclusion

The Ministry’s review has done us a real service by illustrating the many flaws in the existing law. At a minimum, issues like inadequate definitions and ineffective oversight should be fixed immediately. More than that, it should be impossible for the Ministry, for ACT, or anyone else to contemplate advocating for any kind of expansion unless and until those flaws are fixed. And if they do, they should reject the Ministry’s proposals to erode conscience rights for health practitioners and for facilities that care for vulnerable people. Compelling participation in euthanasia undermines the virtues of conscience and care that are the foundation of all healthcare practice.

‍