The Nathaniel Centre

Euthanasia and the Common Good

Charlotte Paul

 In this article, Charlotte Paul reflects on some of the wider and often ignored consequences of legalising euthanasia; on the dying process, on the roles of doctors and on the impact of euthanasia on suffering. While euthanasia is offered as a means of relieving suffering, its very availability may well exacerbate suffering for many. 

This article is available online at: https://corpus.nz/euthanasia-and-the-common-good/

Oral Submission to the Justice Select Committee on the End of Life Choice Bill

The Nathaniel Centre – the NZ Catholic Bioethics Centre

11 June 2018

The Bill being considered seeks to legalise both euthanasia and assisted suicide – we use these terms because legally and ethically they are the most precise, but for the purposes of this submission we will use the term EAS to refer to both.

We are strongly opposed to the EOLC Bill – it has many problems which are covered in our written submission. These include:

  1. Imprecise terminology 
  2. Misunderstanding of the well-accepted ethical distinction between giving pain relief which may inadvertently shorten a life vs the intentional ending of a life using lethal medication
  3. Broad and vague criteria around eligibility
  4. Unbearable suffering is determined against subjective measures 
  5. An absence of effective safeguards, particularly measures to detect and prevent coercion
  6. A naïve promotion of individual choice that fails to recognise the critical difference between choice and autonomy and fails to consider the broader social consequences of EAS
  7. Potentially negative consequences for those with mental illness and persons with a disability
  8. The unnecessary inclusion & involvement of doctors  

In addition, it is increasingly apparent that, in places where euthanasia is available, the practice is contributing to a disturbing new norm around dying. Thus, Professor Theo Boer, a former member of a Dutch Review Committee and long-time supporter of assisted death has now “become increasingly hesitant to advise countries to legalize physician assisted dying”. He writes about “a gradual shift” where EAS has gone from being an act of “last resort” to becoming a “default way to die.” This is evident in the year-upon-year significant increase in numbers which belies the claim that these laws can be restricted to the so-called ‘difficult cases’.

Even in Oregon, where numbers are relatively speaking much lower than in Belgium or the Netherlands, there is, annually, a steady and steep climb in the numbers. 

We have reflected on the arguments commonly used to promote EAS. We think the strongest argument coalesces around the hard cases that are routinely held-up by proponents of EAS. We understand there are those, MP’s included, who feel the need to somehow provide a ‘small back door’ for the “small but significant group” of people (and that’s a phrase from the Explanatory Note of the Bill) who fall into that category.

Putting aside for a moment the question as to whether it is even possible to safely create a small back door, and we doubt it is possible, it is obvious that the EOLC Bill will not provide this. Why? Because the very broad eligibility criteria, combined with the subjective calculation of unbearable suffering and the use of vague terms such as “advanced decline” will, in practice, create a ‘four-lane motorway’ access to assisted death in New Zealand for a very broad range of people. We argue this will in practice include people with depression and mental illness and other people who are not imminently dying. 

Interestingly, and concerningly, we note that various submitters who have already presented to you were reported as arguing that the Bill in its current form is far too narrow! 

We reject, in the strongest possible terms, the idea that, quoting again from the Explanatory Note, “evidence and developments have established that there are serious problems with the current state of the law in New Zealand.” ‘What evidence?’ we ask? ‘What developments?’ 

That is not to say that there are not people who are still experiencing bad deaths, deaths with unnecessary pain or suffering. Yes, things need to get better. Palliative care is great for those who can access it, but is not equally or equitably accessible. There is a problem, but EAS is not the ethical or caring answer. 

We want to leave you today with two words: ‘TAKE CARE’. These two, simple words have a rich and multi-faceted meaning in the context of this debate.

  1. TAKE CARE as in, ‘be wary’ – step very carefully. This Bill is not what it seems. If EAS is considered a reasonable response to self-defined suffering, including existential suffering, then it must expand to include the suffering of others such as children, those with mental illness and those unable to give consent. Peer-reviewed research shows that safeguards overseas are not effective and that the laws are routinely violated – cases not reported and people euthanised without giving consent.  Why would it be different here? 
  2. TAKE CARE as in, let’s show nothing other than EXQUISITE CARE to those in our society who are most vulnerable and most dependant. We know, to our shame, that more and more of our elders are experiencing social isolation. We know loneliness is a predictor of poorer health outcomes, including depression. We know that even mild depression, which can be hard to detect, can skew people’s perceptions of their worth and desire to live. We know elder abuse is on the rise, despite everyone’s best efforts to prevent it, and the problem with elder abuse is not a weak law. There has never been a more dangerous time to implement assisted death in New Zealand.
  3. TAKE CARE as in, let’s promote a cultural shift in our society so that those who need to be cared for are empowered to accept care from others - indeed to see such care as their right. In real life, people with life-limiting illnesses veer between hope and despair – the desire to prematurely end one’s life is a fluctuating one. They may be afraid of how their illness will develop and what suffering it may bring. Many are worried about the impact of their illness on those around them, inevitably expressed in terms of ‘not wanting to be a burden’. It is of great concern that the fear of being a burden is increasingly becoming a part of our social narrative. People need hope above all – this Bill does the opposite by confirming people’s worst fears, including the fear of being a burden. 
  1. Finally, TAKE CARE as in, take care of our medical system by keeping EAS right out of healthcare. Assisted death is not part of medical care. It will introduce a whole new negative dynamic into the doctor-patient relationship. If you really want to introduce an assisted death regime in New Zealand, at least keep it out of medicine. Doctors are not necessary for such a regime and do not want to be part of this. EAS violates medical ethics. It is opposed by all the major medical associations in New Zealand such as NZMA, ANZSPM and Palliative Care Nurses as well as Hospice NZ. As the NZMA noted in their written submission to this Committee, we should not ask doctors to be ‘life takers’ as well as ‘life savers’. 

To conclude: This Bill will contribute to making NZ a less inclusive society for those who are least functional and most dependant on others for care. 

Is this really the sort of society we want? We can do better when it comes to providing and delivering good quality palliative care at the end of life. We need to do better, especially when it comes to valuing our elders. We need to challenge the narrative ‘better off dead than disabled’ rather than buy wholesale into that narrative which is what this Bill does. 

Were parliament to make EAS legal in New Zealand right now, it would be neither safe nor, after a relatively short time, would it be rare.

Making death easier makes life harder

What an absolute waste of the grandchildren’s college money!'

Richard Stith

Easing access to suicide continues to be debated, usually in discussions of the legalization of assisted suicide (now often called euphemistically “aid in dying”). But there is an argument that may not be heard in such debates: by making death easier, we make life harder.

Once suicide becomes readily available and accepted, dependent persons who refuse to choose death will be blamed for voluntarily burdening their caregivers, and for burdening society as well, thus filling the end of their lives with new sorts of suffering.

Yet this is not the harm ordinarily articulated by opponents of assisted suicide. They most commonly argue, rightly, that making a deadly drug available to dependent persons risks life itself by exposing vulnerable persons to pressure or coercion aiming at death.

But they often fail to mention the other great harm that results from any “right to die”: facilitating suicide endangers not just ailing or moribund bodies but the quality of ongoing human relationships.

Should some lives be deemed expendable?

When choosing to die is not seen as an option, we are able to imagine those who battle against serious illness or disabling conditions to be heroes struggling against an implacable fate. Their lives and their deaths are full of a meaning ready to be discovered by them and those around them.

If an ailing grandmother fights to live on, despite her pain and her disabilities, she can be the object of sympathy in her misfortunes. Insurance or governmental aid can seem to be well-deserved. Indeed, she may so inspire her family, friends, and neighbors that they feel privileged to share in some of her frustrations as they care for her. They can feel solidarity with her, and with each other, as they fight back at her side.

When death finally comes, the grandmother’s last experiences and the lasting memories of her caregivers can be of a network of persons bound together in her honor.

By contrast, the right of a severely infirm person to assisted suicide (or to voluntary euthanasia) means that the person’s life has been deemed especially expendable, that his or her continued existence is legally less important than that of healthy human beings (whose lives are still protected against suicide).

Disability groups have long pointed out that one reason assisted suicide is popular is that people who are severely disabled are just not very important to many of us. We may not really care whether they get pressured into killing themselves. If they choose instead to live, they do so knowing that they do not count for much any more.

More importantly, once an ailing grandmother has been given a way out through the option of assisted suicide, her freely chosen suffering will no longer seem to call for as much family compassion or community support. As Dr. Ezekiel Emanuel, a cancer specialist and ethicist (later appointed by former President Barack Obama as a healthcare advisor) once explained,

Broad legalization of physician-assisted suicide and euthanasia would have the paradoxical effect of making patients seem to be responsible for their own suffering. Rather than being seen primarily as the victims of pain and suffering caused by disease, patients would be seen as having the power to end their suffering by agreeing to an injection or taking some pills; refusing would mean that living through the pain was the patient’s decision, the patient’s responsibility. Placing the blame on the patient would reduce the motivation of caregivers to provide the extra care that might be required, and would ease [their] guilt if the care fell short.

Many relatively feeble persons already think they are a burden on others. But now they will think that they themselves, rather than illness or age, are to blame for the trouble they feel they impose.

Living a selfish life . . . by not dying

In choosing to continue to live in great dependence, moreover, a grandmother may be resented as deeply selfish, preferring to benefit herself at a heavy cost to those around her. And as the benefit she receives grows smaller in their eyes—as she nears death or becomes more laden with pains or disabilities—her seeming selfishness increases.

She chooses to increase the burden on her family, and on society, for the sake of an ever-smaller benefit to herself.

If she soldiers on to the point where caregivers and others judge her life to be a cost to her as well as to them, she becomes in their eyes irrational as well as selfish.

As the United States Conference of Catholic Bishops has warned, such a person “may . . . be seen as . . . a needless burden on others, and even be encouraged to view [herself] that way.” Her right to choose death thus brings with it a cruel paradox, if she insists on living: as her misery and consequent need for assistance increase, the sympathy and willingness of her family (and of health insurance payers) to sacrifice decrease.

This diminution of respect and concern for the sick will not be limited only to mean or stingy families and communities. If further care really contributed little to a grandmother’s physical well-being, and a painless death were easily attainable, how could anyone forget that fact?

Politeness and love would inhibit candor, but the person with disabilities would still know what her family can’t help thinking: “What an absolute waste of the grandchildren’s college money!”

Some years ago, the Times of London printed a letter in which ninety-year-old Margaret White wrote: “I am happy here in the nursing home with no wish to die. But were voluntary euthanasia to be made legal I would feel it my absolute duty to ask for it as I now have 19 descendants who need my legacy. I am sure I am not alone in this resolution.”

If Ms. White chose instead to live, she would clearly feel guilty of failing in her perceived “absolute duty.” By turning suicide into a right, we present those in greatest need of assistance with a choice between easy death and hard guilt.

A loving grandmother may constantly wonder whether she is being too selfish even in continuing to eat, when the money for her food could have been used for some better purpose. Agonized by guilt, she may find herself drowning in a sea of resentment, fearing that she will be remembered as a selfish human being who died a dishonorable death.

Dependence does not negate human dignity

A leading American legal theorist, the late Ronald Dworkin, has emphasized the disdain that may accompany this resentment, writing: “We are distressed by, even disapprove of, someone . . . who neglects or sacrifices the independence we think dignity requires.” For Dworkin, a person who chooses to live in great dependence denies that he is someone “whose life is important for its own sake.”

Dworkin can be heard here to echo that great nineteenth-century atheist who sought to purge our society of the remnants of Christian compassion. Friedrich Nietzsche urged prophetically: “To go on vegetating in cowardly dependence on physicians and machinations, after the meaning of life, the right to life, has been lost, that ought to prompt a profound contempt in society.”

Nietzsche complained that Christians (at least in his day) stand against such disdain for the dependent:

If the degenerate and the sick . . . are to be accorded the same value as the healthy . . . then unnaturalness becomes law — This universal love of men is in practice the preference for the suffering, underprivileged, degenerate: it has in fact lowered and weakened the strength, the responsibility, the lofty duty to sacrifice men . . .

The species requires that the ill-constituted, weak, degenerate perish: but it was precisely to them that Christianity turned as a conserving force.

Nietzsche said he was searching for “a thoroughgoing practical nihilism.” But, unsurprisingly, he found nihilism to be a hard sell. He mused, “Problem: with what means could one attain to a severe form of really contagious nihilism: such as teaches and practices voluntary death with scientific conscientiousness (—and not a feeble, vegetable existence in expectation of a false afterlife—)?”

Will Nietzsche’s “problem” finally be solved in our day? Will our very old, our very sick, our very incapacitated be convinced by a newly celebrated right to assisted suicide that they are contemptible burdens if they do not “autonomously” choose death?

Each withdrawal of protection against suicide endangers not only the lives but also the human dignity and support relationships of persons with burdensome infirmities. By contrast, when our law and culture treat suicide as a tragic rather than a benign choice and refuse to facilitate it, those most in need are more likely to receive sympathetic help rather than guilt-inducing blame and resentment.

Opponents of the legalization of assisted suicide thus have not only strong pro-life arguments but also telling quality-of-life arguments that they need to bring up whenever any right to suicide is being debated.

Richard Stith is a senior research professor at Valparaiso University Law School. This article originally appeared in Public Discourse, the online journal of the Witherspoon Institute of Princeton, New Jersey. It is reprinted with the permission of the author and Public Discourse. It is available online: https://www.thepublicdiscourse.com/2018/09/39887/

 

Advance Care Planning: Q&A for Faith Communities

by Noel Tiano

What is Advance Care Planning?

Advance Care Planning (ACP) is a “process of exploring what matters to you when thinking about end-of-life care, and sharing that information with your loved ones and health care team so treatment and care plans can support your wishes.” It can include “what is meaningful to you, such as people and pets, your values and the ways you would like those caring for you to look after your spiritual and emotional needs. It will also tell your loved ones and medical staff about the treatment and care you want if you are no longer able to tell them yourself.”

An Advance Directive (AD) which is a “consent or refusal to a specific treatment(s) which may or may not be offered in the future when the patient loses capacity to make healthcare decisions,” may form part of an Advance Care Plan.

What is the legal standing of Advance Care Plans and Advance Directives?

The New Zealand Bill of Rights Act guarantees the right of individuals to refuse medical treatment. According to New Zealand’s Code of Health and Disability Services Consumers’ Rights, Advance Directives can be written or oral instructions, specifying a decision to receive or refuse future health care procedures, including life sustaining treatments such as respirators and resuscitation. A valid Advance Directive is legally binding, but only becomes effective in circumstances where a person is unable to make decisions for themselves.

Both ACPs and ADs need the following criteria to be valid:

  • Voluntary
  • Informed consent
  • Decision-making capacity
  • Applicable to present circumstances

We live in a world where, in spite of our best intentions, complications may arise due to differences in expectations, communication breakdown and unforeseen events. Advance Care Planning conversations can bring patients, families and providers on the same page as regards care at the end of life.

If your Advance Directive indicates a particular preference, will that be followed?

The fact that a person requests a medication or intervention does not necessarily mean that their request will be granted: the procedure may not be medically indicated; there might be a lack of resources available such as an organ for transplantation; the request may be unethical. In real life, people’s choices need to be balanced by considerations of distributive justice and cultural/ community interests.

Can an Advance Care Plan be changed?

A person can change, void, or update their ACP at any time. A periodic review of ACPs as well as wills and EPAs is suggested, especially when experiencing major changes such as the death of a spouse or partner, separation/divorce, migration, etc. What does Catholic teaching say about end of life care?

Catholic teaching recognises that there are limits to the duty to maintain life and restore health:

“When inevitable death is imminent ... it is permitted in conscience to take the decision to refuse forms of treatment that would only secure a precarious and burdensome prolongation of life, so long as the normal care due to the sick person in similar cases is not interrupted.” (US Conference of Catholic Bishops, 2006). The rationale for this teaching is spelt out in the Catechism of the Catholic Church: “Discontinuing medical procedures that are burdensome, dangerous, extraordinary, or disproportionate to the expected outcome can be legitimate; it is the refusal of ‘over-zealous’ treatment. Here one does not will to cause death; one’s inability to impede it is merely accepted.” (# 2278) The modern hospice movement, founded by Dame Cicely Saunders, takes a holistic approach to caring for those with lifelimiting conditions that incorporates a person’s physical, mental, social and spiritual needs.

What does a Māori approach to Advance Care Planning look like?

The Northland DHB developed a Māori ACP model called He Waka Kakarauri as a way to engage Māori in Advance Care Planning. This can be found at their website at www.northlanddhb.org.nz

I’m ready to work on my Advance Care Plan. How do I start?

Please visit: www.myACP.org.nz

Concluding thoughts

Advance Care Plans provide the opportunity for patients and their whānau to engage in caring conversations about their values, beliefs and practices when facing a life-limiting health condition. While some deaths can be sudden, others are drawn out. Hence, it is imperative to give people ample time to talk about their care plans - their hopes, fears, spiritual needs and other preferences. ACPs can cover retirement, residential care options, palliation, comfort measures, complementary therapies such as music and arts, organ donation, funerals, wills, and enduring powers of attorney.

The complexities of end of life care will continue to increase as cultures and societies change. While ACPs are not a cure-all for all the challenges thrown up by the complexities we encounter at the end of life, nevertheless, such conversations are important steps in promoting patients’ rights and responsibilities. ACPs are meant to enhance future health planning by improving care for the dying through shared decision making.

I strongly recommend writing and dating your ACPs and sharing them with your doctor, family and loved ones.

The goal of care is to cure sometimes, to treat often, to comfort always. (Hippocrates)

 

Noel Tiano (ThD, MSCW) is a community social worker at Mary Potter Hospice in Wellington.

Aged Care, Elder Abuse and Euthanasia: “A fairer, kinder New Zealand”?

Dr John Kleinsman

The theme of a fairer, kinder nation has been taken up by our Prime Minister, Jacinda Ardern, as part of her narrative for what good leadership looks like. In her first 100 days speech (January 31, 2018), she voiced her commitment to “leave a legacy of a stronger, fairer, kinder New Zealand.” The phrase was utilised again in her leader’s speech at the Labour Party conference in November 2018 and was also used by Finance Minister Grant Robertson when presenting the 2019 “Wellbeing Budget”.

In using this phrase, the Prime Minister has provided us with a critical ethical lens through which her government’s policy-making decisions can be viewed and assessed. It is a lens that I hope will continue to be utilised by future governments – it provides a necessary, richer and more humane alternative to using ‘economic growth’ as the primary indicator for judging the ‘prosperity’ of our country.

The theme is not a new one for a Labour Leader. In 2014 it was used by David Cunliffe in an address given at the Grey Power AGM. Describing older persons as some of the most vulnerable members in our society, Cunliffe spoke of the need to “create a fairer, kinder New Zealand … [in which] all Kiwis can look forward to growing old” – one that has their “very best interests … at heart.”

‘A country in which it is not just safe for our elders to grow old, but one in which they feel valued as taonga and will flourish’: no-one I know would disagree that this constitutes a key characteristic of a fairer, kinder New Zealand.

Taking up this theme, and reflecting on whether legalising euthanasia is the right thing to do at this time – a question that may well yet be put to all New Zealanders in a referendum – it follows that one of the tests politicians should apply is whether legalising euthanasia will create a fairer, kinder New Zealand for our elders?

It is argued by some that the End of Life Choice Bill currently before Parliament provides an important legal remedy for those who strongly desire, but are currently denied, access to euthanasia. Proponents of change maintain they are simply advocating for ‘choice’, and that those who don’t want to avail themselves of euthanasia will still retain their choice to die a natural death. The veracity of this particular argument is premised on the (questionable) assumption that giving choice to a few will not undermine the choice to continue living for those who would otherwise not ask for euthanasia.

The veracity of the case against euthanasia, meanwhile, involves a more complicated argument – that giving choice to the few will, in real life, expose far greater numbers of people to the risk of a premature death because of the context in which our elders live – a context characterised by ableism, ageism, growing levels of social isolation for those over 65, and year on year rises in cases of elder abuse.

The statistics relating to elder abuse provided by Age Concern are shocking. In 2018 there were “more than 2,200 referrals. Two thirds of these [1,466] were confirmed to involve abuse or neglect”.1 Drawing on overseas research, it is recognised that the real number of abuse cases represent only 16% of the number reported,2 which puts the total of people being actively abused in New Zealand in any one year at more than nine thousand. It is of extreme concern that past figures from Age Concern show that the 2018 figures represent a 50% increase on the levels of abuse reported just four years ago in 2014. This state of affairs represents a tragic and shameful indictment on our society.

Justice and compassion demand that we ask: ‘What is going on in our culture to explain this disturbing phenomenon?’ The answer lies, to a significant extent, in recognising the increasing prevalence of negative attitudes towards older people in our society; a function of the erosion of their place and value in our world, combined with familial and societal pressures that in recent decades have made make it less practicable and more challenging for families and society as a whole to care for and support older people.

Disturbingly, Age Concern report that more than 75% of alleged abusers are family members, with more than 70% involving psychological abuse and 50% of all cases involving financial abuse. Typically, cases involve more than one type of abuse at a time.

In 2009, an Auckland University study3 identified “beliefs about the inter-generational transfer of money and property as leading to financial abuse”, a situation without doubt exacerbated by growing financial pressures on families. While interest rates are currently the lowest they have been for decades, a lack of housing stock, along with extreme house prices in the main centres and rising costs for people being cared for in rest homes, will ensure that financial pressures will continue to characterise our cultural landscape and will continue to contribute to our shocking rates of elder abuse.

Now, while the Age Concern figures focus largely on the ‘overt’ coercion and abuse that our elders are regularly experiencing, Michael Wood (MP), speaking at the second reading of the End of Life Choice Bill, eloquently describes an equally abhorrent and equally dangerous, but less well recognised, ‘covert’ or implicit pressure that our elders experience:

I am ... deeply concerned, on the basis of conversations with people and my knowledge of people, including my own loved ones, approaching an end of life situation, that many of those people ... [will] feel the implicit pressure. They feel the burden on their families, they worry about the pain that the final months may put them through, and they may see it simply as a better choice for other people to access the end of life provisions that are included within this bill. I do not believe that is conscionable.

In a similar vein, Don Mathieson (QC) accurately articulates how legalising euthanasia will play out in the rest homes caring for our elders:

I’ve recently had quite a bit to do with one rest home village and I’ve had a chance to get the feel of the elderly residents and I know for a fact that if you had a voluntary euthanasia regime, the whole tone of that rest home village would be greatly altered as people came to fear the suggestion that they think might be made to them that they should seek euthanasia, that their time has come, that they’ve lived a long life, that they’re being a burden to others, a very expensive burden in some cases, and that they’d be better off dead.

Our rising rates of elder abuse, combined with, and linked to, financial pressures and ageist attitudes that promote a dangerous undercurrent of overt and covert pressure, will, without doubt, influence the uptake of euthanasia by our elders should it be legalised.

It makes sense that the very availability of euthanasia will make our elders more vulnerable to a premature death. It is understandable that people who are neglected, undervalued, socially isolated and made to feel invisible, people who are conscious of the demands they are making on the State and/ or family at a time when resources are stretched, will come to believe they are a nuisance, a burden. This perception has gradually crept into our social narrative and is already a serious issue. In the words of one geriatrician:

I heard time and time again, older people telling me that they didn’t want to be a burden. Most were not terminally ill: just sensitive to a society that tends to regard its older population as a burden and therefore likely to accede to even subtle suggestions that they have had a ‘good-innings’.

The idea that people have had a ‘good innings’ points to changes that legalising euthanasia will bring to the ‘landscape of care’, by which I mean it will affect how we look at and regard our elders, especially those at the end of life. Psychiatrist Mark Komrad tells the story of the elderly father of a colleague of his who lives in Belgium, has a chronic condition and has chosen not to have euthanasia: “I am told, when his father complains about his symptoms that some of his friends will say – you chose not to have euthanasia.” This represents a subtle but profound shift in the collective psyche, one characterised by a loss of kindness, empathy and compassion. It is without doubt one of the most dangerous unintended consequences of legalising euthanasia. It is also one of the least well-recognised and spoken about risks of euthanasia legislation.

In the ageist, resource-impoverished society in which we live, many older persons will come to experience the ‘choice’ of euthanasia as a burden – the burden of justifying every single day, to themselves if not also to others, why they would not avail themselves of it. In my view, that is neither fair nor kind.

Our elders deserve better. There has never been a more dangerous time in which to introduce euthanasia in New Zealand.

Our Prime Minister has offered us a wonderful vision of a fairer and kinder New Zealand. In the current context, defined as it is by ageism and elder abuse, the End of Life Choice Bill, on balance, clearly fails the ‘fairer, kinder test’. The question I am left with is why she and many others remain blind to this fact?

 

Endnotes

1 See Age Concern, https://www.ageconcern.org.nz/ACNZPublic/ Information/Policy_and_Research/Research_into_elder_abuse/ACNZ_ Public/Elder_Abuse_and_Neglect_Research.aspx, accessed 4 August 2019.
2 See Elder Abuse and Neglect, (2007) Ministry of Health, https://www. health.govt.nz/system/files/documents/publications/family-violenceguideliens-elder-abuse-neglect.pdf, p. 15.
3 See Peri, Fanslow et al (2009), Keeping Older People Safe by Preventing Elder Abuse and Neglect, Social Policy Journal of New Zealand, Issue 35 at https://www.ageconcern.org.nz/files/EANP/Keeping%20Older%20 People%20Safe%20by%20Preventing%20Elder%20Abuse%20and%20 Neglect,%20Kathryn%20Peri,%202009.pdf.

Editorial: Euthanasia Memo to MPs: ‘Hard Cases Make Bad Law’

On Wednesday 13 November, David Seymour’s End of Life Choice Bill passed its final reading. This piece of legislation, which still requires a referendum to become law, is one of the most significant pieces of social policy to have been debated in New Zealand for some time.

Despite this fact, the overall quality of the 3rd reading speeches was severely lacking. While some reference was made to the medical, legal and other experts who contributed evidence to the Justice Select Committee Investigation, robust consideration of that evidence was notably absent. In the words of one acerbic tweeter: “NZ MPs vote the #euthanasia bill (EOLC) through tonight despite any number of warnings that it is a shonky, shoddy and dangerous piece of work. Deeply disappointed in all the MPs who were mired in their individualistic narratives.”

The case favouring euthanasia, when it is made, generally focuses on specific, individual hard cases. These stories are heart wrenching, difficult to tell and deserve to be told. There is a place for these “individualistic narratives” in the broader conversation about euthanasia, especially when they highlight a lack of quality end-of-life care. But there is more at stake when it comes to shaping law. As an ethicist, I have been surprised that so many MPs seem to think the presentation of one or more ‘hard cases’ is sufficient justification for supporting Seymour’s Bill. Have they forgotten the age-old maxim: ‘Hard cases make bad laws’?

When it comes to setting new public policy, my clear expectation is that MPs will focus assiduously on whether a Bill is fit for purpose. That is their job, one which requires them to set aside personal ideological motivations and move beyond personal anecdotes. Politics 101.

As former Prime Minister Sir Bill English articulated in an opinion piece published in the Dom Post (13 November): “It all comes down to deciding whether the bill, with its changes, will ultimately deliver what it says. My position on euthanasia is well known. I have spoken many times about why I am opposed in principle. But to my former colleagues I say, even if you agree in principle, this is not the bill to deliver euthanasia and assisted suicide to New Zealanders.”

Chris Penk was one of the few MPs to articulate his awareness of the parliamentary task: “The first [question] is not whether some people should die in a way that the bill allows, but whether any people could die in a way that the bill does not allow. Put another way, the question is not whether it is possible to imagine whether a person who is competent, in good mental health, has a supportive family, and whose first language is English ... might be able to make a choice and not be bullied into an early grave but ... what is the number of vulnerable New Zealanders who may EDITORIAL be coerced to exercise the so-called choice, absent other choices? A further question might be not whether the Bill is better than it was before – less dangerous, in other words – but whether it is good enough now.”

Answering the question about whether a bill is “good enough now” is a complex exercise which, above all, requires a willingness to engage with the evidence. And, as any researcher knows, that also means avoiding vague assertions. Again, that is another clear expectation I have of MPs. And again, I feel let down by many MPs response to the End of Life Choice Bill, including David Seymour, who has persistently refused to engage with the evidence.

For example, responding to a recent and detailed 10 page letter from 21 mental health experts and researchers (university academics, psychiatrists, psychologists and mental health workers) which carefully lays out the statistical evidence pointing to a potential link between suicide rates and an increase in the numbers of people dying by euthanasia or assisted suicide – a serious issue in a country with epidemic suicide numbers – Seymour’s only comment was to attack the integrity of the writers: “To see people in the Herald this morning saying that there is ‘suggested evidence’, well, I’ve heard that academic standards are falling, but suggestive evidence is a new low.”

Then, dismissing the argument as “frankly disgraceful”, Seymour concludes “there is no connection between legalised assisted dying and suicide anywhere.” But why, I ask, would anyone believe any MP over the claims of 21 experts who conclude their letter by stating that “it cannot be categorically stated that legalising assisted dying in New Zealand will not further exacerbate our rates of (non-assisted) suicide over time” and who are also witnessing evidence of a connection in their clinical work? A serious question needs to be treated seriously!

As we move towards a referendum on euthanasia, my sincere hope is that the public will show a greater willingness than Seymour to consider whether his Bill will, in real life, protect our most vulnerable elderly and disabled citizens. To everyone I say: ‘Look directly at what the experts have said yourselves, rather than be lulled by vacuous assertions from politicians which deny, defer and/or deflect attention from the evidence’.

Dr John Kleinsman is director of The Nathaniel Centre

Euthanasia in New Zealand

Over the last few years, there have been several events that have generated an active public discussion on euthanasia and assisted suicide in New Zealand. In 2012, then Labour List MP Maryan Street prepared a Private Members Bill, the "End of Life Choice Bill". It was subsequently withdrawn from the ballot box prior to the 2014 election campaign as the Labour Leadership did not want it debated during an election year.

Then, in 2015, Wellington lawyer Lecretia Seales, who was suffering from terminal brain cancer, sought a ruling from the High Court that "assisted dying" was not unlawful under the Crimes Act, and that a ban on "assisted dying" contravened her human rights under the New Zealand Bill of Rights Act 1990. The Court ruled that any assistance, whether in the form of assisted suicide or euthanasia by her doctor, would be unlawful and that the relevant provisions of the Crimes Act 1961 were consistent with the rights and freedoms contained in the Bill of Rights Act. It further suggested that changes to the law sought by Ms Seales could only be made by Parliament. Justice Collins referred specifically to the complexity and broad nature of the issues that are implicated in changing the law, stating that: "The complex legal, philosophical, moral and clinical issues raised by Ms Seales' proceedings can only be addressed by Parliament passing legislation to amend the effect of the Crimes Act.".

Following this ruling, a petition organised by the Voluntary Euthanasia Society (VES) was presented to Parliament in June 2015 by former MP and VES President Maryan Street and Matt Vickers, the husband of Lecretia Seales. It asked that the House of Representatives investigate public attitudes towards the introduction of legislation permitting "medically-assisted dying". The Select Committee investigated 1) factors that contribute to the desire to end one's life, 2) the effectiveness of services and support available to those who desire to end their own lives, 3) the attitudes of New Zealanders towards the ending of one's life and the current legal situation, and 4) international experiences.

ACT Party Leader and MP David Seymour submitted his own "End of Life Choice Bill" in October 2015. The key difference from Street's Bill was that it did not include End of Life care directives. While this Select Committee inquiry was still in process, Seymour's Bill was drawn from the private members ballot box on 8 June 2017. The Bill seeks to legalise euthanasia and assisted suicide in New Zealand for people 18 years and over with either a terminal illness or "grievous and irremediable medical condition" (effectively people with disabilities, chronic, and mental health conditions).

Meanwhile, the Health Select Committee released their report on the VES petition in August 2017. The submission process received over 21,000 unique submissions from around the country between 27 August 2015 and 1 February 2016, and heard 944 oral submissions (read the submissions here). 80% of the submissions were opposed to the legalisation of euthanasia and assisted suicide in New Zealand. The Report echoed Justice Collins' observation that the issue "is clearly very complicated, very divisive, and extremely contentious", but made no clear recommendations about legislation on euthanasia or assisted suicide in New Zealand, stating that it was a usually a matter of a conscience vote. Instead, the Report encouraged "everyone with an interest in the subject to read the report in full, and to draw their own conclusions based on the evidence presented in it".

Seymour's Bill had its first reading just before Christmas on the 13 Decmeber 2017. You can read the transcript or watch the videos from the first debate here. It is currently before the Justice Select Committee, who received over 35,000 submissions from New Zealanders. The Committee are now hearing from everyone who indicated that they wanted to be heard in person by the Committee. Information about hearing times and locations can be found here. Videos from some of the hearing sessions so far can be found here. Submissions for the Bill can be found here (not all submissions have been posted yet).

 

It is  important to understand that personal choices that people make are always contextually bound. The current New Zealand context, characterised as it is by 'functionalism', increasing ageism that is manifesting itself in growing elder abuse and an increase in the social isolation of the elderly, and a deficit understanding and fear of disability means, in our view, that there has never been a more dangerous time to make suicide and/or euthanasia more easily available.

The answer to the existential suffering that many people experience, and which drives requests for euthanasia and assisted suicide in overseas jurisdictions, is not to make it easier for people to end their lives but to continue to improve access to palliative care for all New Zealanders. It is our informed view that when all of the risks are objectively assessed and weighed up, any perceived benefits for a small minority of persons would be far outweighed by far larger numbers being exposed to the very real dangers of a premature death.

 

The current legal status quo remains the most responsible option for New Zealand at this time.

 

 

Download: Quick Facts: Euthanasia and Assisted Suicide.

 

 

 

Further articles

Articles in this section are ordered according to topic.

Disability

Dying/End of Life Experience

Euthanasia 

International

Medical/Palliative

Official Reports & Statements

Public Opinion/Discourse, Law

Suffering/Care/Compassion

Suicide/Assisted Suicide

Subcategories