New Zealand is debating euthanasia as the country approaches the September 2 – 19 euthanasia referendum which is happening during the election.
New Zealand’s parliament passed a euthanasia bill in November 2019 by a vote of 69 to 51. In order to obtain the necessary votes to pass the Act the government agreed to a referendum on the Act.
The New Zealand euthanasia referendum offers voters a simple question:
Do you support the End of Life Choices Act 2019 coming into force?
The answers are:
Yes, I support the End of Life Choice Act 2019 coming into force or
No, I do not support the End of Life Choice Act 2019 coming into force.
Given the simple question, and the fact that a recent newspaper article on the referendum simplified the issue to: Should Kiwis have the right to die with ‘dignity’? I felt that it was important to assess the language of the End of Life Choice Act so that Kiwis would know what their vote will mean.
My comments will only focus on parts of the Act.
Its important to note that the End Of Life Choice Act legalizes both euthanasia and assisted suicide under the term assisted dying. The bill misleads the public when it states that the purpose of the act is:
to give persons who have a terminal illness and who meet certain criteria the option of lawfully requesting medical assistance to end their lives; and
to establish a lawful process for assisting eligible persons who exercise that option.
The actual purpose of the act is to give medical practitioners and nurse practitioners the right in law to cause the death or provide the means for a person to cause their own death, if deemed eligible. People already have the right to lawfully request medical assistance to end their lives, but medical and nurse practitioners are not lawfully permitted to carry-out the act.
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Section 4 of the Act makes it clear that medical or nurse practitioners can do the act by euthanasia (administering) or assisted suicide (self-administration).
Euthanasia is normally treated as a form of homicide since the act of administering is done by lethal injection whereas assisted suicide is the act of prescribing lethal drugs for the purpose of suicide.
It is interesting that the Act permits foreign doctors to move to do euthanasia. Section 4 of the Act includes in the definition of independent medical practitioner:
b) has held, for at least the previous 5 years, a practising certificate, or the equivalent certification from an overseas authority responsible for the registration or licensing of medical practitioners.
The Act permits euthanasia or assisted suicide for a person who:
(a) is aged 18 years or over
(b) a person who has New Zealand citizenship… or a permanent resident…
(c) suffers from a terminal illness that is likely to end the person’s life within 6 months; and
(d) is in an advanced state of irreversible decline in physical capability; and
(e) experiences unbearable suffering that cannot be relieved in a manner that the person considers tolerable; and
(f) is competent to make an informed decision about assisted dying.
The conditions that qualify someone to die by lethal injection, other than the age requirement, are almost completely subjective and nearly impossible to regulate.
The terminal illness with 6 months to live requirement is based on an estimate, but further to that, the State of Oregon defines the 6 months terminal prognosis based on refusing medical treatment. Since there is a right to refuse treatment, the six-month prognosis definition can only be interpreted based on refusing effective treatment.
The requirement that a person be in an advanced state of irreversible decline is subjective and unable to regulate. There are many conditions that lead to an advanced state of irreversible decline but this requirement can only be interpreted by the individual.
The requirement that a person experience unbearable suffering that cannot be relieved in a manner that the person considers tolerable is completely subjective. The person only needs to claim that their suffering is unbearable and that they don’t consider the available treatments to be tolerable.
The requirement that a person be competent is difficult to access considering that many people are deeply depressed but respond in a relatively “normal” manner.
The Act appears to prevent euthanasia if a person only has the following:
(a) is suffering from any form of mental disorder or mental illness; or
(b) has a disability of any kind; or
(c) is of advanced age.
Nonetheless, this section of the Act lacks meaning. Since the person is required to have a “terminal illness” it would be discriminatory to deny someone who has a “6 month prognosis” an assisted death if they are suffering from a mental illness, or living with a disability or of an advanced age.
The Act specifically states that the health practitioner must not initiate the conversation or suggest to the person that they consider assisted dying. This Section of the Act is impossible to regulate since these discussions are usually done in private and the possible discipline for contravening this Section of the Act is minimal.
The Act describes a myriad of options and possibilities, but the basic information is that there is a 48 hour waiting period and a medical or nurse practitioner must be present at the death.
Similar to other jurisdictions, the law requires the medical or nurse practitioner who carries out the death must send a report to the Registrar.
Similar to other jurisdictions the law is designed to protect the medical or nurse practitioner who is willing to cause the death of a patient. Self-reporting systems enable the medical or nurse practitioner to ensure that the report follows legal guidelines, even when the death was outside of the parameters of the law. Without third party independent oversight, the law will be easily abused.
Sections 37 and 38 of the Act provides criminal and civil immunity from the law. The medical or nurse practitioner is immune from civil liability if A, in good faith and believing on reasonable grounds that another person (B) wishes to exercise the option of assisted dying. Even if a medical or nurse practitioner transgressed the law, it is impossible to prove that they did so without good faith and did not believe on reasonable grounds that the person wanted an assisted death.
Euthanasia and or assisted suicide laws, whether or not they are called assisted death or Medical Aid in Dying, are designed to provide legal protection for the medical practitioner who is willing to kill another person.
The New Zealand End of Life Choices Act tightly protects medical or nurse practitioners who are given the right in law to kill while providing no effective oversight for the person who will die.
Finally the issue of choice and autonomy.
All of these laws claim to provide choice and autonomy for people who want to die. Clearly this is not the case. The Act gives decision making power to the medical or nurse practitioner.
The New Zealand End of Life Choices Act is not about individual rights or freedoms but rather the rules that a medical or nurse practitioner must follow to cause death.