The End-of-Life Choice Act 2019 comes into effect on 7 November 2021. From this date, a patient who is experiencing unbearable suffering from a terminal illness is able to seek assistance to end their life.
This is a sensitive issue, with strong views both for and against. Accordingly, the law has broad obligations which will impact on all health practitioners – even if they have no obvious connection to assisted dying services. There are requirements when assisting a patient to access the service, and when declining to be involved in the process at all.
It is important to understand this new legislation, and how it might apply.
How does the process work?
Any discussions about assisted dying must be raised by the patient. Their doctor can then start a referral process. This will include an eligibility assessment, to be performed by at least two medical practitioners – one is the referring doctor, but the other must be independent. To be eligible to access the service, a patient must be:
- aged 18 years or over;
- a citizen or permanent resident of New Zealand;
- suffering from a terminal illness that is likely to end their life within six months;
- in an advanced state of irreversible decline in physical capability;
- experiencing unbearable suffering that cannot be relieved in a manner that they consider tolerable; and
- competent to make an informed decision about assisted dying – this means they must be able to understand the information about assisted dying, retain and weigh that information, and communicate their decision.
If the assessing practitioners cannot agree whether the patient is competent to make the decision to access assisted dying services, a psychiatric assessment may be performed.
If a patient is approved to access the service, they take control. There are some things that must occur– a doctor must be available to the patient until the patient has died, but they do not have to be in the same room. The cause of death will need to say they died from their terminal illness, but that assisted dying was elected.
Other than this, it is largely up to the patient. They can choose when and how they wish to take the medication to end their life, so long as it is within 6 months of the date of their approval. This can be by self-administration, or with the assistance of a doctor or nurse. And they can change their mind about any of the arrangements at any time – including whether to go through with it at all.
What about Health Practitioners who are not directly involved in the assisting dying process?
Consistent with the patient centred approach of the Act, the process for assisted dying must be patient initiated. The Act prohibits health practitioners from initiating a discussion about assisted dying or suggesting that a patient may be eligible for it. Doing so may give rise to professional disciplinary proceedings.
This prohibition is very broad and applies to all health practitioners who are providing a health service to a patient. So, a seemingly innocuous conversation as a dentist, osteopath, or podiatrist (for example) could lead to issues.
This discussion may also take place with no other witnesses or methods to verify the patient-initiated nature of the discussions.
If a patient raises assisted dying, a practitioner should keep clear, contemporaneous records of the discussion to confirm the patient raised the issue – regardless of the practitioners’ normal area of practice.
What about practitioners who don’t want to be involved in the assisted dying process?
Unlike in some other areas of health services, it is okay if a health practitioner doesn’t want to participate in the assisted dying process – they are able to decline. But they will need to help the patient find someone who will assist them.
The Ministry of Health have established the Support and Consultation for End of Life in New Zealand Group (SCENZ). This statutory body maintains a list of health practitioners and psychiatrists who are willing to be involved in the assisted dying process.
Need more help?
The Ministry of Health has put together some helpful resources which can be found here. And for further guidance, reach out to our health law team.